辦理工程採購業務缺失之探討

Abstract

一般基層公務人員因法律知識不足，常見誤解法令做出錯誤判斷，直到經檢調單位起訴後，才發現自己已身犯圖利或不當得利之刑事罪責，因此如何符合法律規定並快速完成工程，確保相關作為屬於「便民」而非「圖利」，對基層公務人員極為重要。本研究回顧某機關曾遭檢調單位起訴之工程個案，透過個案研究方式，探討該個案之起訴原因、違反法令、錯誤作業程序、調查程序及判決結果，並配合專家訪談方式，提出未來避免產生相似情況之建議作法，期提供基層公務人員辦理工程採購之參考。研究結果顯示，在遭起訴之個案中，多數屬於無意圖利情況，且主要皆係誤解法令所致，因此進行相關決策前，必須詳細熟讀政府採購法及相關規定，方可確保相關作為並未違反法令之規定，避免陷入圖利罪責。

Due to the lack of relevant legal knowledge, civil servants’ misinterpretation of law and regulations leads to inaccurate judgment decision. More than often, they did not realize they had committed criminal offense until being prosecuted for unjust enrichment. It is rather important for civil servants to efficiently complete a construction project abiding by the law, and ensure that all the procedures are “for the convenience of the public” rather than “making unjustified profit.” This research reviewed a prosecuted case of a construction project in a civil service department. The case study examined and discussed the rationale behind the prosecuting procedure such as the way in which civil servants violated the law, their erroneous operating procedure, and the prosecutor’s investigation process and court decision. This research also interviewed experts whose future suggestions preventing similar situations offer local civil servant a reference for conducting procurement. Research results demonstrated that most of the prosecuted civil servants were not aware of their criminal acts, which were often a result of misinterpreting the law and regulations. Therefore, it is important for civil servants to carefully read the Government Procurement Act and relevant laws before making decisions; only by doing this can they ensure the procurement process is law abiding and the personnel involved do not gain unjustified benefits.