消滅時效與仲裁判斷之交錯適用-以工程契約所生之請求權為例

林誠二

中文摘要

工程契約乃為民事契約法中具有相當特殊性之契約類型,蓋工程契約中往往夾雜大量技術性及專業性之條款,故於工程糾紛解決機制中,仲裁制度相較於傳統訴訟更能解決當事人之紛爭。惟於台北市政府捷運局與法商馬特拉公司就捷運木柵線工程CC-350 合約爭議一案中,卻因法律規範交錯適用之結果,導致個案中適用消滅時效制度發生不合理之情形,此等問題若不加以解決,勢將影響未來利用仲裁制度解決工程糾紛之可能性。為完整呈現問題之形成過程及解決方式,勢無法避免觸碰民法消滅時效制度、工程契約中請求權之時效期間、仲裁制度之特殊性以及仲裁判斷之效力等基礎概念,而依循上開法律規範,吾人可發現無論在判斷因提付仲裁而中斷時效之時點、仲裁判斷作成後短期消滅時效有無民法第137 條第3 項延長規定之適用乃至經仲裁判斷後消滅時效重行起算之時點等問題,或因法律規範之不足,或因法律解釋偏離制度目的,導致於實務上、學說上發生種種問題。在上開問題當中,其中尤以撤銷仲裁判斷訴訟時,法院依仲裁法第42條第2項撤銷原執行許可之裁定,導致請求權人無法藉由聲請強制執行再次中斷時效而使請求權罹於時效之情形最為嚴重,針對此一不公平之情形,於解釋面上或可依據民法誠信原則加以個案救濟,但根本之作法,則應於立法上刪除仲裁法第42條第2項此一與強制執行原理有所違背之規定,如此方能使當事人因選用不同紛爭處理機制時,不致有迥異之法律效果產生。同時,此一問題之解決,亦使仲裁制度得以發揮其特色,擴大當事人利用仲裁制度解決工程糾紛之意願與機會。

 

The Cross Application of Extinctive Prescription and Arbitration Award –Focusing on Claims under the Construction Contracts

Chen-Erh Lin

abstract

Construction agreements are special contracts in the field of civil contract law. This is simply because such contracts involving a lot of clauses concerning technicality and performance of the current Alternative Dispute Resolution(ADR). The arbitration system has been deemed as the more practicable to resolve issues and disputes arising out of or in connection with the construction agreements between the parties concerned than by filing court actions. In the case of Department of Repaid Transit system TCG v. S.A .MATRA transport concerning CC-350 disputes , however, the result of courts applying different laws has leaded to the unreasonableness of using the prescription system in a particular case. If such unseasonableness can not be remedied, it would be less incentive for the adoption of arbitration system to solve disputes under construction agreements. In order to point out the progress of raising legal issues and their methods of resolution, it is interesting for us to touch the basic concepts of prescription period for claiming under construction agreements, the characteristic of arbitration system and the enforcement of an arbitration award. However, the point of interrupting the prescription period due to filing the arbitration, whether the extension of the prescription period as set forth in the sub-paragraph 3 of Article 137 of Civil Code(Taiwan) is applicable, and the re-counting point of the prescription period upon the granting of an arbitration award have created different positions among judicial practices and legal theories. Reasons for such difference partly are due to the insufficiency of legal regulations and partly due to improper legal interpretation. The mostly criticized problem among such issues with regard to arbitration award is that if the court grants an order of invalidating its original decree for execution of the arbitrative award in accordance with the sub-paragraph 2,Article 42 of the Arbitration Law(Taiwan) , the claimant will lose his opportunity to re-interrupt the prescription period with resort to requesting for judicial collection. As to this unreasonable situation, it may be remedied case by case with reference to the principle of god faith. In my opinion, the fundamental resolution is to delete such unreasonable and contradictory provision set forth in the said sub-paragraph 2 of Article 42 so as to avoid the concerned party to select any of ADR most favorable to him but which will lead to contradictory consequence as result of applying different clauses. If such proposal of deletion can be achieved, the characteristic function of arbitration system would be mostly developed and thus it will increase the willingness and opportunities of the parties in dispute to take advantage of arbitration system to resolve disputes arising out of or in connection with construction agreements.