| 英文摘要 |
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.
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