葉婉如

Wan-Ju Yeh

工程契約、工程承攬契約、契約終止、重大終止事由、承攬人之終止、繼續性債之關係

contract for work, construction contract, termination of contract, german new work contract, termination of contract on specific grounds, termination right of contractor

　　我國法中並未明確賦予承攬人有終止權利，惟在需長期履行之工程承攬契約履約過程中，因締約基礎不存在或因重大事由發生，致使當事人繼續依原契約內容履行契約並維持契約關係顯有困難而變得不可期待(無期待可能性)，繼續維持契約將對於當事人一方顯示公平而過苛時，於此重大影響契約繼續之情形下，宜賦予當事人重新調整契約內容(契約變更、部分終止)甚至解消契約關係(全部終止)之可能性。此等情形，縱算契約或法律未有明文規定，基於誠信原則及公平原則考量，應容許當事人以締約基礎不存在或重大事由發生為由來調整契約或解約。
　　在德國法中，針對繼續性債之關係設有出於重大事由終止契約之一般性規定，即德國民法第314條。德國民法第648a條新增訂之承攬契約重大終止事由，原則上乃脫胎於德國民法第314條並參考實務長久以來對於承攬終止之法官法發展與VOB/B之相關規定；惟針對承攬契約給付乃一定工作結果之特性，於第2項規定有部分終止之可能、於第4項規定有給付工作現狀之偕同確認義務，以及於第5項規定有承攬人於終止後就已提出給付之工作部分得請求報酬。德國法此等有關重大終止事由之規定，於定作人任意終止權外，賦予承攬人法律明文得行使終止權的基礎，對於當事人間契約地位與權利義務有更加促進實質平等之益；德國法創造了工程承攬人一終止權行使之可能性，透過終止權行使與終止後法律效果，能更適切符合工程承攬契約之規範需求，並符合當事人權利行使之效益預期，實值我國法參考。

Taiwan Civil law does not explicitly give the contractor the right to terminate a construction contract. But in the process of performance of a long-term construction contract, because the contract basis does not exist anymore or due to major reasons occurs that it is difficult for the parties to continue performing the contract and maintaining the contractual relationship according to the original contract. Furthermore, it becomes unpredictable or no more expectable for both parties and therefore that the parties continue to maintain the contract will be unfair to both. In the case where this significant reasons continue impacting the contract, it is advisable to give the parties the possibility of re-adjusting the contractual content (such as contract change, partial termination) or even canceling the contractual relationship (whole termination). In such cases, even the contract or the law does not expressly stipulate that the parties should be allowed to adjust or terminate the contract, according to the principle of good faith and the principle of fairness, the parties should be allowed to adjust or terminate the contract because of that the contract basis does not exist or the major causes occurs which already destroy the contract basis and trust.
In German Civil law, there is a general rule for the termination of a continuing contract because of a major cause, namely Article 314 of the German Civil Code. And such abnormal termination is not limited to the party that is not attributable. Both parties regardless of whether the party is liable or not, the parties have right to claim to terminate the contract because of the major reasons. The new termination of the contractual contract in German Civil Code Article 648a is, in principle, born out of Article 314 of the German Civil Code and refer to the long-standing practice of the development of the judge law and the VOB/B regulations for the termination of the construction contract. However, the contractual payment is a characteristic of a certain result of work, and under the second Paragraph of Article 648a there is a possibility of partial termination. The both parties have obligation to confirm the status of the work under the fourth Paragraph of Article 648a. And under the fifth Paragraph of Article 648a it is required that after the termination proprietor has to paid for the completed work. Besides the proprietor may terminate the contract at any time before the completion of the work, the new regulations of the German Civil law concerning such major terminations give contractor right to terminate contract. It can promote the substantive equality of contractual status and rights and obligations of the parties. It is more appropriate to match the regulatory requirements of the construction contract, and progress the benefit expectations and the rights of both contract parties.