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Legal Relations of Bid Bond and Guarantee Bond in Administration Law：Focus on Government Procurement Act and Act for Promotion of Private Participation in Infrastructure Projects
Han, Zi-Xiang (Author)
Dr. Hsu, Teng-Ko (Advisor)
Department of Law, College of Social Science, National Cheng Kung University
SUMMARY
There are a lot of controversial cases applying “Legal Relations of Bid Bond or Guarantee Bond in Government Procurement Act and Act for Promotion of Private Participation in Infrastructure Projects” in Taiwan in the recent years. These issues are related to the legal relationship in administrative law. To this end, this article starts with four cases and explains the problems that the government and manufacturers will encounter when applying “Government Procurement Act” and “Act for Promotion of Private Participation in Infrastructure Projects”. Then, from the perspective of the legal relationship theory between the Constitution and the Administrative Law, discuss “Legal Relations of Bid Bond and Guarantee Bond in Administration Law”, Clarify the legal relationship between the government and the manufacturer is explored and solve problems. That is to say, in accordance with the respective laws and regulations, under the principle of legal and principle of administrative legal relationship theory and administrative law, understand the legal nature and rights and obligations of “Guarantee Bid Bond” and “Guarantee Bond”. Therefore, this thesis researches legal relations of bid bond and guarantee bond in administration law.
Key Words: Government Procurement Act, Act for Promotion of Private Participation in Infrastructure Projects, Bid Bond, Guarantee Bond, Legal Relations
INTRODUCTION
With the amendments to Articles 30 and 31 of the Government Procurement Act, the legal relationship of administrative law is important. To understand the theory of the legal relationship of administrative law, we should make a hierarchical and connected understanding from the constitution to the legal to administrative act. In chapter 2, describe the important concepts of legal relations in administrative law, It includes the concept of administration by law, the applicability of civil law, the revision of private law by public law, and the connotation of Contractual legal relationship in administrative law. Of course, there is also the application of the theory of legal relations.
In chapter 3, analyzes “Legal Relations of Bid Bond or Guarantee Bond in Government Procurement Act”. It should observe the laws and regulations of Articles 30 and 31 of the Government Procurement Act, and the Statute of Limitations. Further, we can understand what kind of rights and obligations the government and manufacturers have from the beginning to the end of the legal relationship of the margin. To be more specific, the legal nature of bid bond is controversial. This paper believes that it should still return to the legal obligations of Articles 30 and 31 of the Procurement Law, and it is known that it was the characteristics of a guaranty contract on the procurement law. In addition, Article 31 of the Procurement Law gives the agency a confiscation and recovery right, and the interpretation can be considered as having the same legal nature. In addition, in the rights and obligations of the guarantee bond, if the guarantee bond has an agreement to confiscate the contract, of course, the application of Article 252 of the Civil Code. However, if the guarantee bond is not of a nature of liquidated damages, under the principle of the principle of administrative law, manufacturers still have right to ask the agency for legal discretion.
In accordance with the theoretical construction of the administrative legal relationship guided by the second chapter of the above-mentioned Rules, in Chapter 4, judge the legal basis and principle of legal reservation in the Act for Promotion of Private Participation in Infrastructure Projects. And then, according to the Act for Promotion of Private Participation in Infrastructure Projects Act Enforcement Rules of Article 53, there are also the rights and obligations of the government and manufacturers on the law. Further, it is possible to understand more about the rights and obligations of the government and the manufacturers from the beginning to the end of the legal relationship of the margin, and How to solve related practical problems. To be more specific, regarding the legal issues of the guarantee bond in the implementation of the rules, the answer is that there is no violation of the law. Considering the overall normative intention of the regulations, and paying the guarantee bond has no serious impact on the restrictions on the people's property rights, and the act of confiscation and recovery of the guarantee bond is not an administrative penalty, and “Act for Promotion of Private Participation in Infrastructure Projects” as an administrative law of guarantee has the characteristics of a framework legislation, in line with the principle of legal reservation. Then, under the law, government may decide to use different administrative actions to form a legal relationship with the applicant of the guarantee bond. In addition, the liquidated damages are different from the applicant of the guarantee bond, and the application guarantee cannot be applied to Article 252 of the Civil Law. In addition, the content of the rights and obligations of the guarantee bond on the promotion of the law is mainly based on the investment documents and the investment contract model.
In conclusion, through the perspective of the administrative legal relationship guided by legal relations, this paper focuses on “Legal Relations of Bid Bond or Guarantee Bond in Government Procurement Act”, and “Legal Relations of Guarantee Bond in Act for Promotion of Private Participation in Infrastructure Projects”. Then, after clarifying the rights and obligations of the respective laws and regulations, it is hoped that it will help resolve the disputes related to practice, and the rights of private manufacturers can also properly secured.
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