| 摘要: | 文化資產之管理分有公有資產及私人所有，私有文化資產之管理，依照文化資產保存法第21條第1項為其所有權人管理維護，與行政部門相關以申請修繕經費的補助為多，雖臺北市文化局有接受民間委託進行古蹟修復工程的案例，但並未有相關被委託經營的情形；至於公有之文化資產，按文化資產保存法之概念應包括保存與管理。早期「凍齡式保存」的概念，加之管理機關欠缺相關保存專業與維護經費，且無法有效利用情況下，面對越來越多文化資產只能任其閒置頹壞，本論文以探討閒置文化資產如何委外經營以及所涉及法律相關問題為主要。
公、私部門合作執行行政任務在國家理論及國家法學上，根本地改變了國家與社會間的二元對立，並隨之對於我國傳統之行政法制形成結構性之挑戰。是以，合作行政形式及合作法律關係形塑等議題，顯現傳統之行政法學遭遇對公私協力一般性法制規整不足及學理不備之雙重難題。
鑑於文化資產的委外經營應屬業務委託，在現行法規有「提供使用」、「出租與標租」、「委託經營」與「公共建設參與」四種模式，在公私協力合作關係上，行政部門與民間機構皆認為在法規允許條件下引入商業行為，是要考量的重要委外項目之一，但雙方思考角度並不相同，加之公共關係（例如學政界外部意見、敦親睦鄰）的維持，相當挑戰經營者的應變能力；本研究從老房子文化運動探討文化資產的委外經營，在維持歷史文化價值前提下，為使行政機關調整職能與角色，改善政府財政壓力，適當活化古蹟，文化資產保存與再利用二個議題的整合，如何透過公私協力引入適當的經營模式，創造保存文化資產與經營者雙贏的情況。
對於公有財產委託民間經營的從選商到營運的委託，由於委託目的不同而有不同法律關係及規範，涉及因素相當廣泛且多層級（中央法及地方法層級），目前無明確公私合作的法令可依循情況下，公部門仍以行政指導方式才能實現行政目的，但承襲一慣的程序，難以擺脫窠臼的高權合作結構，無論我國促參法規範架構，或德國有關行政程序法研修討論提出建構行政合作法，或學者提出建議修正行政程序法章節，皆可歸納出一個共同點：亦即以形塑公私協力法律關係為目的所締結之合作契約。
公私協力機制能否順利推展，以及私部門是否有效執行行政任務、雙方合作關係妥適的維繫到協力關係的終止，公私合作契約的形塑是關鍵一環；雖現行促參法對於合作契約有相關規定，但攸關履約保證、契約變更、雙方責任擔保等仍缺具體規範，以及行政契約或一般民事契約並不能涵蓋公私協力間契約中之特殊內涵，在立法政策上較為妥適之建議，實有必要為其獨立一契約態樣，在法律上課予公、私部門契約當事人負有政策任務的契約條款，並規制最低限度或必要內容之法規範基本框架，俾使日益增長的合作契約簽訂實務有所依循。
The management of cultural assets can be divided into public and private assets. The management of privately owned cultural assets is managed and maintained by the owner in accordance with Article 21, Paragraph 1 of the Cultural Assets Preservation Law, and the administrative department is mostly related to applying for subsidies for repair and restoration funds, although the Taipei City Cultural Affairs Bureau has accepted the commissioning of monuments by the private sector to carry out restoration projects, there is no relevant commissioned operation; as for publicly owned cultural assets, the concept of cultural assets preservation law should include preservation and management. The concept of the Cultural Assets Preservation Law should include preservation and management. In the early days, the concept of “frozen preservation”, coupled with the lack of relevant preservation expertise and maintenance funds for management agencies, and the inability to effectively utilize the situation, facing more and more cultural assets can only be allowed to sit idle and decay, this paper explores how to outsource the operation of unused cultural assets as well as the legal issues involved as the main.
Cooperation between the public and private sectors in carrying out administrative tasks has fundamentally changed the dichotomy between the state and society in terms of state theory and national jurisprudence, and has subsequently formed a structural challenge to the traditional administrative legal system in China. Therefore, issues such as the form of cooperative administration and the shaping of cooperative legal relations show that traditional administrative law has encountered the dual problems of insufficient legal regulation of public-private partnerships and inadequate doctrine.
In view of the fact that the outsourcing of cultural assets should be considered as business entrustment, and there are four modes in the existing regulations, namely, “provision of use”, “leasing and tendering”, “entrustment of operation”, and “participation in public construction”, in terms of the public-private partnership, both the administrative departments and the civil organizations believe that the introduction of commercial behaviors is one of the most important outsourcing projects that should be considered under the conditions of the law and regulations, but the two sides do not have the same point of view, and in view of the fact that the public relations (e.g., views from outside the academic and political sectors, views from the Tunisian government, views from the public sector, etc.) have been very different. However, both sides have different perspectives, and the maintenance of public relations (e.g., external opinions of the academic and political sectors, and the need to maintain good neighborliness) is a challenge to the operator's ability to cope with the situation. This study explores the outsourcing of cultural assets from the Old House Cultural Movement, and under the prerequisite of maintaining the value of history and culture, and in order to enable the executive branch to adjust its functions and roles, improve the government's financial pressure, and appropriately revitalize the monuments, this study explores the integration of the two topics of the preservation and reuse of cultural assets, and how to introduce an appropriate mode of operation through the collaboration between the public and private sector. How to introduce an appropriate business model through public-private partnership to create a win-win situation for both the preservation of cultural assets and the operators.
As for the entrustment of public property to the private sector, from the selection of the business to the operation of the entrustment, due to the different purposes of the entrustment, there are different legal relationships and regulations, involving a wide range of factors and multiple levels (at the central law and local law levels), there is no clear public-private partnership law to follow, the public sector is still using administrative guidance in order to achieve the administrative purposes, but inherited the usual procedures, it is difficult to get rid of the stereotypical high-powered cooperation structure. Regardless of the normative framework of our country's participation promotion law, or Germany's discussion on the administrative procedure law, which proposes to construct an administrative cooperation law, or the scholars' proposal to amend the chapter of the administrative procedure law, all of them can be summarized into a common point: that is, the cooperation contract concluded with the purpose of shaping the public-private partnership legal relationship.
Whether the mechanism of public-private partnership can be successfully implemented, whether the private sector can effectively carry out administrative tasks, and whether the cooperative relationship between the two parties can be appropriately maintained until the end of the partnership, the shaping of the public-private partnership contract is a key link; although the current Promotion of Participation Law has relevant provisions on the cooperation contract, there are still no specific regulations on performance guarantee, contract modification, and mutual liability guarantee, etc., and the administrative contract or general civil contract cannot cover the special characteristics of the contract between the public and private sectors. In terms of legislative policy, it is more appropriate to suggest that there is a need to establish a separate contractual form for the public and private sectors, to assign contractual terms to the parties to the public-private sector contracts that have a policy responsibility, and to establish a basic framework of legal regulations with a minimum or necessary content, so as to provide a basis for the increasing number of cooperative contracts to be entered into. |
