授權公務員在經辦採購身分之爭議

The Dispute over the Authorized Public Official's Status in charge of Procurement

2005年刑法總則對公務員之定義，由最廣義修正列分：身分公務員、授權公務員與委託公務員三類，其中授權公務員觸犯貪污治罪條例所列之罪者，多係任職公營事業或公立學校等機構之人員，依政府採購法之規定辦理採購而具有公務員之身分，其行為又多為收受賄賂、回扣及圖利；然因政府採購法之規範，將採購行為分成公權力行為及私經濟行為，再區分招標、審標、決標階段與履約驗收階段分別適用，因此發生公營事業或公立學校依政府採購法執行採購之人，縱使收受利益卻無法可罰，而從事私經濟行為卻可認定為貪瀆之情形。此係法律規範之缺失？有研究釐清之必要。本文，擬就採購行為中，公共事務之認定，探討其法律制度之缺失，並提出建議，以彌補此問題所產生之法律風險。

The definition of 'public official' was revised in the Criminal Law in 2005 which listed three types of 'public official': 1. the one who executes public duties under laws or orders; 2. the one who is empowered with legal function and power to serve a state organization or a local autonomous body; 3. the one who is entrusted by a state organization or a local body and engaged in the public affairs within the authority of the entrusting organization. Most of the 'empowered public officials' who offended against Anti-Corruption Act (ACA) are the employees of state/public organizations or schools. The major corruption related to government procurement results from accepting bribery, receiving commissions, and illegally profiting others. However, the Government Procurement Act (GPA) divides procurement into two types: one deals with public affairs under legislative authorities and the other deals with private affairs between firms and private schools. Furthermore, procurement in GPA is divided into two stages: 1. bidding, reviewing bidding norms, and awarding a contract; 2. executing the contract and making a check. Nevertheless, currently no laws or regulations can penalize the employees of public enterprises and schools who accept bribes in the course of procurement based on GPA. On the other hand, the procurement involved with private affairs can be convicted of corruption or negligence of one's duties. There seem to be deficiency of laws and there is a need to clarify such deficiency. Thus, the main purposes of this study are first to investigate the deficiency of laws in terms of public affairs related to procurement and then to propose constructive suggestions of legal risks derived from such deficiency.