The Study of The Influence of Front Phase Act upon Back Phase in Two-Phase Relationship － Focus on Government Procurement

• Main Authors: Szu-Hung Chen, 陳思宏
• Other Authors: Ming-Shiou Cherng
• Format: Others
• Language: zh-TW
• Published: 2012
• Online Access: http://ndltd.ncl.edu.tw/handle/57792786830418011753

碩士 === 東吳大學 === 法律學系 === 100 === The Government Procurement Act has undergone four amendments, which present the development in maturity of the procurement system in Taiwan since its announcement in 1998 and its enforcement in 1999. From the perspective of law, the common understanding of the two-phase theory (Zweistufentheorie) is adapted in government procurement, and the scholars even interpret the design of the Government Procurement Act after its amendment on 2002 as the explicit realization of the two-phase legal relationship concept in law. But the two-phase that is adapted in Government Procurement Act is different from the two-phase that is adapted in Act for Promotion of Private Participation in Infrastructure Projects. The awarding of Government Procurement is only an act objectively, but is evaluated as two juridical acts legislatively while each act generates a juridical relationship, one is the public juridical relationship at Front Phase and the other is the private relationship at Back Phase. By observing the article 50 sec. 2 of Government Procurement Act, the public relationship of Front Phase and the private relationship of Back Phase are generated at the same time at awarding. But each relationship exists independently, which means that each legal relationship is valid, void or could be withdrawn should be determined individually, yet the public relationship of Front phase is the foundation of the private relationship of Back Phase still. When the public relationship was eliminated because of void or withdrawn, the contract is not void nor ineffective, but the procurement entity shall revoke the award, terminate or rescind the contract except when it is approved by the superior entity, according to the legislative discretion of article 50 sec. 2 of Government Procurement Act. The opinion is also adapted by the Supreme Court decisions recently. The conflict of jurisdiction and decisions between ordinary courts and administrative courts will no longer occur and the issue of the Influence of Front Phase act upon Back Phase can also be solved.