| 摘要註: |
學校採購弊案問題長久以來牽涉政治及商業利益行為，業者為了營運生存常會運用各種方式以達到提高利潤、降低成本之目標並運用政治人脈影響學校採購。然而學校採購弊案之發生不僅傷害學校教育工作之推展，更是社會大眾關注之焦點。本文研究的內容主要著重於探討學校採購圖利案件，從圖利罪於90年11月7日修正後至102年11月7日止，12年來一審法院判決之國內學校採購弊案違法之狀況，並分析採購圖利弊案判決內容，以得知目前學校採購圖利案件之犯罪模式及判決無罪之主要原因，期能提出具體有效之建議對策，供相關單位參考。因此，本研究先針對行政裁量、圖利罪構成要件、違反政府採購法規圖利案件之意函及本質及目前司法單位偵辦採購圖利案件類型、態樣情形予以探討與歸納，俾界定其範圍。進而歸納分析司法機關對違反政府採購法規圖利案件之判決、學校採購犯罪模式特徵，藉此瞭解此類案件之特性與刑事司法體系認定構成犯罪之癥點、學校採購圖利案件類型及判決無罪原因等相關議題，並根據研究結果，提出研究結論：在探討學校採購圖利弊案發生之主要原因方面，有政府採購制度之設立未詳加評估學校之執行能力、政治人際網絡滲入學校採購裁量難以遏止；在政府採購法規方面，存在有條文內容模稜缺明確、解釋函令繁雜、裁量餘地過大，執行缺乏準據、行政裁量涉及刑罰構成要件裁量等問題；在圖利罪法令之爭點與檢調機關偵辦案件之盲點方面，有圖利罪法令定義爭點仍在，辦案之檢調人員對定罪之法令認定過於寬鬆、檢調人員偵辦案件之盲點。依上開結論，本研究提出「檢討現行學校機關執行採購能力」、「修正政府採購法規」、「最高法院應對圖利罪構成要件上之爭點統一見解」、「檢調機關應嚴謹蒐證，審慎移送、起訴圖利案件」等建議。 For a long time, the scandal problem of school procurement has involved the behaviors of the political and commercial interests. For the sake of the business operation and survival, the dealers would often exercise a variety of methods to attain to the objective of increasing profit and reducing costs and employ the political contacts to affect the school procurement. Notwithstanding, the occurrence of the school procurement scandal cases not only harms the development of the school educational work, but becomes the focus for the public’s attention. The contents of this study mainly emphasizes the exploration of the school procurement profiteering cases as well as the law-breaking conditions of the domestic school procurement scandal cases, which had been subject to the sentence of the court of first instance for the twelve-year period, starting from the date of revision of the profiteering crime on November 7, 2001 to November 7, 2013. Besides, it also analyzes the sentence contents of the procurement profiteering scandal cases with the purpose of understanding the crime committing model of the current school procurement profiteering cases and the main cause for the sentence of “being innocent”. It is anticipated that the concrete and effective suggestions and measures can be brought forward for the related sector’s reference. Consequently, this study would first explore and generalize the implication and essence of the profiteering cases violating the government procurement act, based on the administrative discretion and the constituent elements of the profiteering crime, and the types & forms of the procurement profiteering cases, currently investigated by the justice authority, so as to define their scope. Furthermore, this study synthesizes and analyzes the sentence, passed by the justice authority on profiteering cases in violation of the government procurement regulations and the features of the school procurement crime committing pattern. In this way, we can have a understanding of the traits of such kind of cases, and the issues related to the key points in which the criminal justice system considers in the constitution of the crime, the types of the school procurement profiteering cases and the causes for the sentence of “being innocent”. The conclusion of study would be proposed on the basis of the study results. In respect of exploring the main reasons for the occurrence of the school procurement profiteering scandal cases, the cases are that the establishment of the government procurement system does not conduct a detailed assessment on the school’s execution ability, so it is hard to inhibit the permeation of the political interpersonal network into the consideration and decision of the school procurement. As far as the government procurement act is concerned, such problems exist; for example, the contents of the articles is ambiguous in lack of definiteness; the explanation letters and orders are complicated; the space for discretion is too much; the execution is short of the governing law; the administrative discretion involves the consideration of the punishment constituent elements. In the matter of the disputes of the profiteering crime act and the blackspots of the investigation authority in investigating the cases, it is the case that there is still the dispute of the definition of the profiteering crime act; the acceptance of the case handling investigators on the law of the crime conviction is too loose, accompanied with the blind spots when they investigate the cases. In accordance with the foregoing conclusion, this study brings up such suggestions as “reviewing the ability of execution of the current school authorities”, “modifying the government procurement act”, “the uniform opinions made by the supreme court pertaining to the disputable issues of the constituent elements of the profiteering crime”, “the rigid collection of evidence, deliberate removal and indictment of the profiteering cases”. |