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After a long discussion made in the past over ten years, the Construction Industry Act in 73 articles was finally approved and put in effect by the President on February 7th, 2003. The approval of the Construction Industry Act has made the basis of law of the Construction Industry Act be promoted from the administrative decree up to the level of law and regulation. The legislation spirit is to strengthen the running management of the construction industry, not only on the quality of engineering, technical know-how, and responsibility of construction, but also more on the professionalized diversification, i.e., the professional technique, the management of labor and staff, and the safeguard of public safety as well.
Compared to the Management Rules of Construction Industry, there are many characteristic appeared through the reformation of Construction Industry Act. One of them is to include the system of 「Specialized Construction Enterprises」into the management of construction industry. The purpose of such a reformation will improve not only the engineering quality and overall technical level, but also to fulfill the management of construction industry through the specialized division technically. However, throughout the rules and regulations as stipulated in the Construction Industry Act, a lot of points were found unfair and unrealistic in the rights, interests, qualifications, items of specialized construction for the one who wishes to apply for being the specialized constructor. For example, as specified in the Clause 1 of Article 25 of the Construction Industry Act that the transferee of the specialized construction Enterprises should be responsible for and in relation to the part of the job that transferred. Such regulation seemed to have over protected the rights and interests of the specialized constructor, in comparison to Article 67 of the Procurement Act. However, in view of the payment which usually can’t be shared with the sub-contractor after the receipt of the payment by the contractor, the Article 2 of the same Article also is set to confine the rights and interests of the transferee of the specialized construction Enterprises. And it seemed unfair that the Article 25 made the specialized construction Enterprises (sub-contractor) who should bear more of the responsibility without enjoying the rights and interests they should have relatively.
Further more, the transferred engineering as confined in the Article 25 of Construction Industry Act seemed to only point to the items of specialized construction. In reality, the construction of larger scale usually not only transferred all the specialized items to the specialized constructors, but also have some non-specialized jobs transferred to the general constructor of smaller scale or even to the ordinary civil engineering constructor. The Construction Industry Act seemed to have ignored the related regulation between the sub-contracting of specialized engineering and the engineering construction that are prohibited to transfer. This will make not only the management difficult, but also make the dispute unable to resolve without the basis of law. We wish to suggest that the modification to be made with regards to the Article 25 of the Construction Industry Act in the future should expressly split the relationship between the rights and interests and the related responsibility. The sub-contracting system should be properly established in accordance with the sub-contracting spirit. As for the imperfect regulation set to the Government Procurement Act that prohibits the sub-contracting, the Construction Industry Act should confine strictly the non-transference of the construction to prevent from the bad quality engineering and the threat to life and wealth of the people due to the even smaller in numbers of the sub-contractors that happened already.
Besides, the Clause 3 of Article 25 in the same law stipulated that the specialized constructor may undertake not only the transferred construction, but also ask the owner for the specialized engineering and its necessary and related construction according to the specialized items that registered. The said 「necessary and related construction」is surely some kind of uncertainty in law. This will make the specialized constructor difficult or even unable to undertake the civil construction from the authority due to the conservative mental status of the officials in the authority. Further more, among the capital amount and the qualification of the specialized engineers that required in the application for the specialized constructor, some of the capital amount required for the specialized constructor is equal to those required as a Class C General Constructor, while some of them are even higher than those required as a Class C General Constructor. Also over one (1) engineers is required for being the specialized constructor. The aforesaid regulations will be not only useless with the specialized constructors, but also limit the business ranges (items) of the specialized constructor. As a matter of result that many of the constructors will not be interested in becoming the specialized constructors, and that the Construction Industry Act can’t be easily put in effect.
The purpose of this study is trying to realize the problems of the rights and interests, and the real benefit of the establishment of the specialized constructor on the basis of the existing and historical laws and regulations coupled with the administrative decrees and the judgment made by the court of law. The purpose of this study is also trying to resolve the dispute and conflict caused by the unclearness and incompleteness in the actual operation of the relating laws and regulations currently to ensure the perfect of system of the Specialized Constructor which may lead to meet with the spirit set forth in the Article 1, and to improve the healthy development of construction industry, and to promote the social welfare as well.
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