賄賂罪對價關係之實證研究－以近年最高法院判決為中心

Abstract

我國近年來多起賄賂罪案件之成罪與否，皆繫於法院就「對價關係」存否之判斷。然而，所謂「對價關係」並非法條所明文規範之概念，而係我國最高法院透過判例所確立之賄賂罪不法內涵，但因最高法院並未就「對價關係」建立明確的定義、範圍，故最高法院雖於個別案件審理時，陸續提出諸多用於審查「對價關係」存否之因素，然於案件事實中運用各該因素時，竟仍莫衷一是，審查相同因素之結果亦未必獲致相同之判斷。是以各級法院在認定個案中「對價關係」存否時各行其是，甚至在事實完全一致的前提下，各級法院亦可能做出大相逕庭之判斷。 本文嘗試透過整理分析最高法院判決，歸納最高法院在個案中判斷「對價關係」時之審查因素，了解其實際運用時之困境，並嘗試建立適切之「對價關係」審查標準，企圖透過審查標準之建立，修正最高法院有關「對價關係」審查因素之運用方式，以供我國司法實務工作及立法者參考。

In recent years, it can be observed that Court’s judgment on whether the existence of “Quid Pro Quo Relationship" has played an important role in crime of bribery cases. Nevertheless, the so-called “Quid Pro Quo Relationship” is not clearly defined by any rule of laws, rather, definition and content of this concept are found in various verdicts made by the Highest Court. With absence of definition nor applied range of the “Quid Pro Quo Relationship”, the Highest Court thus has promoted several factors to be used to determine whether or not such concept could be found in individual cases. How the concept is applied in individual cases, however, differs considerably, similar factors fail to produce similar judgment as a result. Courts of all levels tend to make their own judgment when determining the existence of “Quid Pro Quo Relationship”; it is thus can be seen that different verdict judgment is given to cases even with the same factors. This paper thus attempts to analyze the verdicts released by the Highest Court, factors when judging the existence of “Quid Pro Quo Relationship” in individual cases and obstacles might be encountered when applied by courts. Establishment of judgment standard and analyses of the “Quid Pro Quo Relationship” when applied by the Highest Court are therefore presented in this paper with an attempt to serve as references for Taiwan’s law makers and people working for the legal system.