外聘專家委員之公務員認定、行為類型與法律責任

The Public Official Identity, Type of Activity and Legal Responsibility of External Experts Committee Member

刑法第10條第2項第1款後段的「其他依法令從事於公共事務，而具有法定職務權限者」，被稱為授權公務員。不具公務員身分的學者專家，受邀擔任委員會的委員，可能被認定屬於從事公共事務、具有法定職務權限，而成為一日公務員，背負刑事責任。本文將說明，刑法修法當時參考了德國、日本規定，但並沒有明白指出外聘學者專家是否為授權公務員。但因修法理由提到了政府採購人員，後來最高法院將採購人員擴張到採購評選委員，涵蓋外聘的專家委員。本文將對外聘學者專家擔任委員，進行分類，並說明不同類型下，其擁有的實質決定權不同。本文主張，若外聘專家委員不具有實質的、獨立決策權，不該被認為具有法定職務權限，而成為公務員。本文也以一則都市計畫委員會的真實案例，進行評析。

The second sentence of Article 10(2) of Criminal Code provided that: “The term ‘public official’ means the following persons ... 1. Those who empowered with legal function and power ... engaged in public affairs in accordance with law,” also called “authorized public official.” Those scholars and experts without the identity of public official, once been invited as a Committee members and accepted, would be deemed as “engaged in public affairs” and “empowered with legal function and power”, becoming a “one day public official,” and had the possibility of bearing criminal responsibility. We will explain that, when the Criminal Code was amended, it refers the related provision of criminal code of German and Japan, but the reason for amendment didn’t mentioned whether external scholars and experts be or not the “authorized public official.” However, the reason for amendment did mentioned procurement personnel included in the authorized public official; therefore, Supreme Court decisions extended the scope of procurement personnel to evaluation committee members, including external scholars and experts. We will try to classify different committees, elaborating that external scholars and experts in different committees have different decision-making power. We argues that, if external scholars and experts have no substantial, independent decision-making power, they should not be deemed as having legal function and power, and should not be deemed as “authorized public official.” We will use a true court case about a member of urban planning committee to elaborate our theory, and review this case.