促參案締約前政策變更之補償與賠償──以三則最高行政法院相關判決為中心

The Compensation and Damage Due to Pre-Contract Termination of Private Paicipation in Infrastructure Projects in Case of Public Policy Changing: Forcus on Three Related Judgements of Supreme Administrative Court

本文探討促參案件中政府機關於作成甄選決定後及締約前，以政策變更為由不締約或不續辦促參案之爭議，並贊同本文中三個最高行政法院判決見解，亦即在主辦機關於促參案締約前以政策變更為由不締約時，需區分觀察：究個案係涉及行政程序法第一二三條第四款之適用和第一二六條之損失補償，或涉及民法第二四五條之一締約過失之損害賠償。在促參法整體制度下，此二項補償與賠償責任，得以兼顧主辦機關之政策推行與責任，以及最優申請人之保護。惟就該實務見解中，將損失補償或損害賠償之救濟方式區分為二種不同救濟途徑，而本文則認為在促參法第四十七條規範下可採統一救濟途徑。同時本文附帶反思雙階理論，認為雙階理論本屬以法律關係理論為基礎之運用，故在促參法本已對促參案締約前法律關係設有整體規範之情形下，則促參法即應足以展現以法律關係理論為基礎之法制建構，實毋庸拘泥或困擾於雙階理論之運用。促參法施行二十年來累績不少經驗與理論探討、法院見解，本文所提淺見，希能促進促參法之認識與促參案之順利推行，期能創造出政府、民間參與私人和人民之三贏。

This article discusses the controversies of not constituting contract and not continuously conducting the private participation in infrastructure projects cases at the timing that authorities in charge have elected the best applicant but have not constituted the contract with it. This article approve the perspective of the three judgements of Supreme Administrative Court hold, which is, that the authorities in charge have to determinate whether the individual private participation in infrastructure project is applicable to compensations ruled by article 123 section 4 of and article 126 of Administrative Procedure Law, or damages of culpa in contrahendo ruled by article 245-1 of Civil Law while deciding not to constitute contracts due to public policies changing before constituting the contract, the compensation and damage remedy systems can give consideration to both the policy promoting and responsibilities, the authorities in charge should take and the protection of the best applicant at the same time. However, the judgements’ opinion described above separates the remedies in to compensation and damage two different ways, on the other hand, this article think there can be united in to one remedy under the norm of article 47 of Act for Promotion of Private Participation in Infrastructure Projects. At the same time, this article re-think the two stage Theory additionally, arguing that the two stage theory essentially is the theory applicated by using legal relationship theory as basis, therefore, in the circumstance that Act for Promotion of Private Participation in Infrastructure Projects has made a complete regulation about the pre-contract legal relationship of promotion of private participation in infrastructure projects, Act for Promotion of Private Participation in Infrastructure Projects should be enough to perform the legal constructure based on legal relationship theory, and there should be no need to be limited or bother the use of two stage theory. There have been accumulated many experiences, theory discusses and court opinions in the past 20 years of practicing Act for Promotion of Private Participation in Infrastructure Projects, and this article submit its own opinion, hoping to promote the understanding of Act for Promotion of Private Participation in Infrastructure Projects and the implement of promotion of private participation in infrastructure projects cases and create the triple wins between government, civil participation and people.