政府投资项目代建制下的责任追究机制

Responsibility mechanism for agent construction of public projects

由于政府投资项目相关主体不都是民事主体,法律责任也包括民事、行政和刑事责任,不宜采用单一的过错责任原则或无过错责任原则来解决代建项目责任追究问题。建议将代建项目责任追究与风险分配结合起来考虑,事先在合同中约定不同风险由哪一方承担,一旦项目实施过程中出现偏差或损失,即可根据约定的风险分配确定归责机制和举证程序。为合理确定风险分配方案,选择与项目实施相关的32项风险因素,针对各项风险由哪一方承担设计问卷,对政府部门、代建单位的管理人员进行调查。根据调查数据的统计分析,将32项风险因素分为6类:政府承担、优先考虑由政府承担、双方分担、优先考虑由代建单位承担、由代建单位承担和视具体情况而定,并阐述每一类风险对应的归责机制和举证程序。

Since the related participants in public projects are not all civil bodies, and legal responsibilities involve different types, including civil, administrative and criminal ones, it should be recognized that neither single fault liability mechanism nor default liability mechanism in Civil Law is applicable for agent construction projects. It is suggested the responsibility mechanism be established on the basis of risk allocation schemes. Different risks should be distributed to related participants in the contract, once defects or losses occurred during project execution, the responsibility allocation and quoting sequence could be selected correspondingly. In order to obtain an appropriate risk allocation scheme, a questionnaire survey was executed. 32 related risk factors were selected in the questionnaire, and 64 experts from public sections and agent construction firms were effectively enquired. All risk factors were classified into six groups according to the statistical results, i.e. risks untaken by government, risks priory undertaken by government, risks shared by both sides, risks priory undertaken by agent construction firm, risks undertaken by agent construction firm, and risks needed further consideration. Finally the responsibility allocation and quoting sequence were expatiated correspondingly.