私部門賄賂罪之可罰性基礎與規範模式

On Justifying the Criminalization of Private-Sector Bribery

近年來由於著名企業職員不當收受回扣，引發社會對企業肅貪議題的關注，此外，依聯合國反貪腐公約施行法第6條之規定，吾等應具體檢討有無將私部門賄賂行為入罪化之正當性及必要性。迄今為止，雖有若干草案版本進入國會審查，但皆未完成立法，本文從「業務上之公正性」、「事業間的公平競爭」、「私部門財產上利益」三種保護法益，然本文認為，競爭法益的保護難以拓展到所有商業交易的領域中，且具對價關係之利益供給行為未必會產生導致市場競爭秩序之抽象危險性。從維護「業務上之公正性」之觀點來建立私部門賄賂行為的法益保護關聯性，較能符合可罰性基礎的應然檢驗。基此，在具有公共事務性質的業務範圍中，可針對以違背職務行為為對價之收賄、行賄行為，予以犯罪化。

Recently, due to social concern for the issue of corporate anti-corruption, legislators in Taiwan draft “Corporate Bribery Prevention Act” rashly without sufficient discussion. However, the issue of criminalization of bribery in private sector has been discussed internationally and thus could help us to realize the importance. In addition, since the United Nations Convention Against Corruption (UNCAC) Implementation Law was passed in May 2015, we should review whether it is appropriate to criminalize private-sector bribery in accordance with Article 21 of the UNCAC. In this paper, the author analyzes this issue with three different viewpoints of “legal interest”, which included “fairness of implementation of business duties”, “fair competition between businesses”, and “property interests of a private sector”. While a free and fair competition rule is eligible for protection of legal interests in specific types of business transactions, it is difficult to extend it to all areas of business transactions. Besides, bribery in private sector may not necessarily lead to losing the effectiveness of the market competition and giving rise to unfair competition. This paper argues that it is more consistent with the fundamental principles of criminal law to Justify the Criminalization of Private-Sector Bribery from the viewpoint of “the fairness of implementation of business duties”. It is necessary to criminalize the bribery of specific positions in the private sector in the regulations of the relevant business. Finally, this paper aims to give some substantial and useful recommendations to our legislators and law enforcers.