民意代表運用影響力收賄之研究

A study on the use of influence by Representatives to accept bribes

我國朝向聯合國反貪腐公約國內法化努力過程中，法務部曾於2018年研議增訂刑法第134條之1影響力交易罪草案，針對民意代表對行政公務員請託關說的行為態樣，有助於解決實務對職務行為見解不一致情形，由於影響力交易罪與公務員收賄罪要件有類似之處，本文嘗試建立適當的區別標準，探討將來立法修訂方向。
本文分析民意代表收賄判決共計15件（96則），並深入訪談民意代表、法官及檢察官，研究發現，法院近年傾向跳脫法定職權框架，將其議會外活動的行為認定為法定職務延伸的密切關聯職務，但民意代表對行政公務員、國營事業或泛公股企業高層人員請託關說的行為，存在明顯的分歧，關鍵在於法院是否將「身分地位」的影響力納入職務範疇。鑑於民意代表職位的存續來自選舉制度，伴隨身分地位的影響力，職位與身分地位環環相扣，而選民服務深化人民的日常生活，濫用身分地位影響力收賄已凸顯貪腐定義的特徵，侵害人民寄託的信任感，有必要發揮法律課責的效果，建議公務員收賄罪納入職務影響力，如果立法怠惰未能修法解決，建議透過大法庭裁判程序統一法律見解。

In the process of our country efforts to legalize the United Nations Convention against corruption, the Ministry of justice discussed the draft of the crime of influence trading added to article 134-1 of the criminal law in 2018. In view of the behavior of public opinion representatives in lobby illegally for help from administrative civil servants, it helps to solve the inconsistency of opinions on the duty behavior of civil servants in accepting bribes in practice. Because the crime of influence trading is similar to the constitutive elements of the crime of civil servants accepting bribes, This paper attempts to establish appropriate standards of distinction and the introduction of the crime of trading influence.
This study analyzed a total of 15 bribery judgments by public opinion representatives (96), and conducted in-depth interviews with public opinion representatives, judges and prosecutors, it is found that in recent years, courts tend to jump out of the legal framework of authority and recognize their activities outside the Parliament as closely related posts extended by legal duties. However, the behavior of public opinion representatives asking for help from senior officials of administrative civil servants, state-owned enterprises or pan public share enterprises is not the same, There are obvious differences, and the key lies in whether the court has included the influence of "status" in its duties. Since the existence of the position of public opinion representative comes from the election system, it strives to establish a good personal identity brand in order to win the election, voter service deepens the people's daily life, position and status are linked, abuse of status and influence to accept bribes has highlighted the characteristics of the definition of corruption and infringed on the trust of the people, it is necessary to give play to the effect of legal accountability. If the legislation is lazy and fails to amend the law, I propose to unify legal opinions through the adjudication process of the Grand Court, so as to reach a consensus on official conduct.