건설공사 설계변경의 절차적 접근과 권한 배분

Abstract

In the construction contract, change in the work is so common as to say that it is inevitable, the disputes for which are very frequent. In Korea, the contract price and time can be adjusted on the premise that the grounds for the change are one of the formerly specified events in regulations in the case of a construction work, to which the standard contract terms provided by the Ministry of Land, Infrastructure and Transport is applied, as well as the works owned by public entities. The change and the adjustment to the price and time, as a whole, is conceived as a modification that requires the meeting of minds. Its procedure is also not adequately fine-tuned. Until now, the improvement of the guidance for change in the work has been much reviewed from the practice, policy, and engineering point of view, and the negative perception has prevailed that the change should be as less often as possible because it is the waste of budget and used as the loophole for illegal retrieval of cost incurred. On the other hand, the standard contract terms by the AIA and FIDIC, and Federal Acquisition Regulations reviewed in this article have an approving stance on the change in the work as a natural phenomenon, and deal with each of the matters arising promptly, but make adjustments to the contract price and time afterwards. Thus, their guidance is turning on the change procedure itself, according to whether the agreement is reached between the parties, and based on the so-called work-first-deal-later frame by obliging a contractor to comply with an employer’s instruction of change even when the dispute is ongoing. In addition, the contractor may or should notify in writing the employer or engineer of any employer’s conduct (FAR) or an engineer’s oral instruction (FIDIC) that the contractor considers a change to the contract, and the conduct or instruction may be certified as change instruction or deemed rescinded. Our regulations and the said standard contract terms do not have such procedure. The work-first-deal-later structure, which requires the employer to have the unilateral power to change in the work as a prerequisite, can be justified by the fact that the employer has a direct, pecuniary, and non-pecuniary interest with the project itself, but the contractor does not. It also serves to ensure the continuity of construction work in spite of the existence of the disputes pertaining to the changes. Taking these into consideration, the concept of the change in the work requiring the mutual consent needs to be reexamined, and thus the reexamination should be made in relation to the necessity of adjustment to the contract price and time. This is because the necessary adjustment should not be denied on the grounds that the grounds of the change is not the one listed in our regulations, etc. I define in this article the definition of the change in the work as the alteration of the contractor’s duty within the general scope of the contract by the unilateral power given the employer to contract modifications. Next, detailed procedures of adjustment following the change are all about the appropriate allocation of procedural authorities between the employer and the contractor. This allocation is the imposition of each kind of renegotiation duty and the award of the effect in case of breach of those duties, from the perspective of Andreas Nelle’s renegotiation duty theory. I suggest several examples of such allocations as placing the interim authority of determining the adjustment in the hand of an engineer when the parties do not agree with each other within the previously specified time limit, giving the contractor the binding power to decide whether the renegotiation is required under a certain situation, imposing the duty of concrete counter-proposal on the employer, vesting the right to demur until the completion of a projet or some time later if the other party breaches the renegotiation duties even when the adjustment is agreed, restricting the period of renegotiation, etc. In this way, it is expected that the delay or impasse of construction work can be prevented even under the disputed circumstances by stipulating the detailed procedures of change and adjustment in order to stave off the abuse of discrepancy in bargaining power between the parties.