論我國規範商業賄賂的法制改革

規範公部門的貪污賄賂有完整的法規，監督舉發單位則疊床架屋。規範私部門的商業賄賂的法令和執法單位卻付之闕如在台灣談到賄賂很自然的會往公務人員的方向聯想，法令對防杜公職人員利用職務之便獲取不法利益有周密的規範和處罰。但社會上的貪瀆事件不單只發生在公務人員身上，私部門的賄賂和貪腐更值得探討。私部門的決策過程雖比公家機構嚴密，但私部門講究時效和品質以及交易成本，絕大部分的決策過程都比公家機構簡短，尤其對專業經理人的信賴是私部門獲得X效率的主要依據，也因此難以避免商業賄賂或經理人貪腐之事。適度修法，明確納入的反商業賄賂的法律條文目前台灣的法律無明文規定私部門間的商業賄賂是非法的行為，更別談私部門間的商業賄賂的「不正當利益」的定義了。私部門的商業收賄行為，往往會轉向背信或侵占罪名處理。無法律規範就等於合法化嗎?面對在境外必須行賄才能取得油源或經營證照等情況時，台灣的法律應有所規範；尤其是中國石油民營化之後，為了取得境外的油源涉及商業賄賂時也應該有法規可以遵循。建立獨立的反貪腐專責機構將商業賄賂納入規範 1.本論文參考香港新加坡成功治理貪污賄賂之經驗，再探討眾所期待的廉政單位的法律地位和組織。 2.公職人員涉及貪污賄賂只是商業賄賂中的一小部份，商業賄賂的盛行是公職人員涉及貪污賄賂的問題之根源，若只是頭痛醫頭，不積極防治商業賄賂，則公職人員的涉貪行為難以根絕，政治法制永無清明之日。 3.執政者的決心魄力和必要的法規制度以及超然地位的執法機關是執政品質的保障和依據，更是互為良性循環不可或缺的驅動力。

關鍵字

商業賄賂

並列摘要

A. There are relatively numerous legal laws to regulate the public administrators/officers from the possible corruption, but the legal rules to regulate the similar conducts from the private sectors are either uncompleted or deficient. While discussing the possible corruptions, we often refer as a common or routine behavior of the public administrators and/or officers. There were numerous and detailed legal laws to regulate and penalize the public officers/administrators from taking illegal conducts. However, corruption did not happen exclusively to public officers/administrators, it happens to private sectors as well. There is urgent need to examine the possible corruptions in the private sectors. The process of making decisions of the private sectors seems to be more rigid and concise than that of the public sectors. Because of the nature of their major business conducts were based on quality, timely efficiency, and capital profit, the duration of making decision is short. And because their profits depend primarily upon the trust on their professional managers, there seems to be more likelihood of business bribing and/or corruption occurs to the private sectors. B. The need to mend legal rules and include it in the anti-business bribing laws Up to the present time, there were no legal rules to indicate that business bribing is an illegal act. There was also no definition of “unjustified interest of business bribes”. In the past, all related business bribes of the private sectors were handled as “antitrust” or “interest invasion”. There was no regulation of these bribing behaviors; nevertheless, that did not mean that these conducts were legal. However, there were situations that are frustrations to the private sectors. For example, there were cases such as there were no legal ways to get the approval of managing a business from the authority except bribing, or there were no legal procedures to get the petroleum except bribing from the relevant authorities. How do we handle these situations legally? An immediate case is that in order to get sufficient supply of petroleum, there would be numerous business bribes from the private sectors when the China Petroleum is privatized. How do we handle these situations? C. Establishing an independent anti-corruption organization to handle business bribing There are successful examples of anticorruption performance from Hong Kong and Singapore. We should consider establishing an independent (independent of any political parties) anti-corruption unit in the government. There should be an independent unit in the government, equipped with well planed regulatory laws to regulate the business bribing from the private sectors. The strong determination from the executive party equipped with completed law is the key to minimize the minimize the business bribes from the private sectors.