公法契约之控制─从公私合伙架构谈起

On Public Contract Control——From Perspective of PPPs Structure

针对公私合伙制度(PPPs)下之契约,探究其系公法契约或是私法契约,具有实际意义。英国、德国及美国在公私合伙制度下之发展进程,值得关注;特别是英国成功发展的PPPs,建构"公法下之政府契约"及"私法下之政府契约"之模式足资赞许;德国针对PPPs下之投资契约,是否适合置入于行政程序法下之行政性契约,相关立法沿革,值得注意与效法;而美国行政任务私有化后,行政机关对外购买服务,公权力充分与私部门分享,而未建构监督与契约治理机制,堪致忧虑,特别是契约外包之下,相关法律不禁止境外转包,则服务之质量与法律正当性受到质疑。

The main purpose of this article is to compare whether the contract under the publicprivate partnerships system （PPPs） belongs to a public or private contract, basing on the study of the PPPs development in the U.K., Germany and the U.S.A. As for the U.K. and its successful PPPs, the establishment of ＇government contract under public law＇ and ＇government contract under private law＇ is praised. Then as for Germany and its design of the investment contract under PPPs, whether to set up an administrative contract under the administrative procedure law as well as the related legislative evolution is considered worth paying attention and following. And as for the U.S.A. and its privatization of administrative tasks, its lack of supervision and contract governing mechanism of administrative bodies purchasing service outside and public power being fully shared with private sectors causes much worry, esp. under the outsourcing contract, the lack of related regulations forbidding overseas subcontracts definitely causes the doubt about service quality and legal justification.