Can There Be Such a Thing as "Accepting Bribes, but without Betraying One's Official Responsibilities?"

Can There Be Such a Thing as "Accepting Bribes, but without Betraying One's Official Responsibilities?"
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
November 30, 2009

Former Chairman of the Taipei 101 Building Diana Chen has retracted her testimony. She says the 10 million NT she gave then First Lady Ah-Cheng was not a "campaign contribution." Rather it was a bribe given to the chairman of Grand Cathay Securities. Diana Chen's testimony has established that Ah-Bian and Ah-Cheng accepted bribes. Is Diana Chen herself guilty or innocent of bribery? Her testimony has touched off considerable controversy. Many people think that given this precedent, Ah-Bian's "Second Financial Reform" can no longer be successfully prosecuted. Below is our view of the "not in violation of official responsibilities" provision in the Civil Servants Service Act.

On September 24 the Executive Yuan pushed through draft amendments to certain provisions of the Anti-Corruption Law. They added a clause pertaining to "accepting bribes not in violation of one's official responsibilities." The law originally stipulated that civil servants who accepted bribes were guilty regardless of whether they were in violation of their official responsibilities. The law originally stipulated that those who offer bribes are only guilty if they ask the civil servant to violate his official responsibilities. If what they ask the civil servant to do is not a violation of his official responsibilities, then those who offered the bribe are not guilty.

When most people think of the "not in violation of official responsibilities" clause, they think of delays in the issuance of construction permits. They are forced to provide additional documentation, repeatedly. Their applications are rejected, repeatedly. Applicants have the right to have their projects approved. But civil servants deliberately make every effort to deny them the permits they have every right to expect. When the applicant offers money and gifts, he is in fact a victim who has been forced to protect himself. It is understandable that the old anti-corruption law did not punish the victims of such official abuse. In order to clarify official responsiblities and reduce the incentive of officials to demand bribes, the amended provisions will increase punishments. That too is understandable.

But other clauses apart from the aforementioned "rights which should have been protected" are another matter altogether. Being appointed chairman of the Taipei 101 Building was not Diana Chen's right. But some people are actually arguing that Diana Chen's appointment as chairman of the Taipei 101 Building should not be considered a violation of official responsibility. As the Ministry of Justice puts it, a "violation of official responsibility" refers to illegal conduct by civil servants. Conversely, "no violation of official responsibility" refers to lack of illegal conduct by civil servants. But this distinction is far too crude. It strikes one as some sort of ivory tower distinction cobbled up by a legal hack. It is utterly at odds with public expectations regarding fairness and justice.

Members of the public are usually forced to bribe an official because the official wields discretionary authority. Examples include the selection of sites for the construction of public buildings, land use classification in urban planning, whether to tax a particular activity, whether to assign a certain case to a certain individual. These decisions are often made by civil servants. They are often in a position to pick winners and losers from a large number of competitors. For them to pick any particular Tom, Dick, or Harry is in itself legal or illegal. But if one reduces "violation of official responsibility" to what is illegal, if one equates "legal" with "not a violation of official responsibility," then one is being deliberately obtuse.

Take re-zoning or closed bids for example. It is a civil servant's responsibility to act conscientiously, in the best interests of the nation and society. According to Civil Servants Services Act, civil servants may not use their authority "to benefit special interests." Therefore when they are involved in public policy decisions that grant them a high degree of discretion, the Administrative Procedure Act mandates a public hearing and public review. A fair assessment must be made before a decision is made. Special interests may not benefit unfairly. Only then can one say that "no violation of official responsibility" has occurred.

Now let us return to the Diana Chen bribery case. Obviously officials in charge of government-owned shares have considerable discretion regarding personnel appointments for various holding companies and securities firms. That is the only reason candidates feel compelled to offer bribes. Often officials abuse their power to extort bribes, or blindly follow orders handed down from above. They do so to benefit special interests at the expense of the nation. They bypass formal assessment processes. They neglect the welfare of the nation. This is of course a clear violation of the Civil Servants Services Act. In short, official misconduct must not be defined narrowly, on the basis of whether civil servants' conduct is or is not "legal." It must be defined broadly, on the basis of whether civil servants' conduct accords with their larger duty to the nation and society. The justice system must recognize this fact. Only then can those who lobby on behalf of re-zoning be made accountable. Only this accords with public expectations regarding social justice.

The Diana Chen case is actually quite simple. She became chairman of the Taipei 101 Building through bribery. But over the past several years, during the so-called "Second Financial Reform Program," many parasites extracted hundreds of billions of dollars in wealth from the nation's coffers. They did so with the help of civil servants who abused their authority and "violated their official responsibility." These parasites are still sitting pretty and living high off the hog. If the legal system does nothing to bring them to justice, if it allows them to continue enjoying the vast fortunes they extracted from the nations coffers by means of huge bribes, public anger will erupt during future elections. Our Ministry of Justice must re-think its definition of "not in violation of official responsibilities." It must bring it in line with the understanding of the man in the street. It must stop thinking like a legal hack.

「不違背職務行賄」豈可如此詮釋！
【聯合報╱社論】
2009.11.30 02:43 am

前一○一董事長陳敏薰在法庭翻供，指其給扁珍之一千萬元並非先前供稱之政治獻金，而是牟求大華證券董事長職位的行賄款。陳敏薰的供詞坐實了扁珍收受賄賂的罪行；不過，對於陳敏薰行賄之事是否有罪，則引發社會討論，許多人認為此例一開，將使得所有二次金改相關案件辦不下去。對此，我們要對公務員「不違背職務」的內涵做些剖析，也要提出我們的看法。

今年九月廿四日，行政院院會通過了貪汙治罪條例部分條文修正草案，增加了「不違背職務行賄罪」。原本的法律規範是：公務員受賄者不論其有無違背職務均為有罪，但對行賄之一方，則只有要求公務員「違背職務」而行賄的人才有罪；若是所要求的行為沒有違背公務人員職務，則行賄者無罪。

在一般人的直觀概念裡，所謂公務員不違背職務，應該是指申請建照被拖延、補件退件反覆要求等刁難情事。當事人原本即有權利該得到公務機關之核准，卻因公務人員千方百計以技術性阻擋而無法獲得其權利；這個時候，當事人送錢送禮行賄，其實是被壓迫下的自保行為。舊的貪汙治罪條例對此行為不罰人民，可以理解；而為澄清吏治減少行賄意願，新的修正條文要加以處罰，我們也可以接受。

但除了前述當事人「原本即應享權利」之情形外，其餘狀況則有不少灰色空間。一○一董座當然不是陳敏薰應得的權利，故類似指派陳敏薰為一○一董座的行為究竟該歸類為有違職務或不違職務，我們則有以下的詮釋。依法務部說帖的解說，所謂違背職務即指公務員之違法行為，而所謂不違背職務即指其不違法之行為。但這樣的定義區分太過粗疏，像是不食人間煙火的法匠論述，更與人民對公平正義之期待有相當大的出入。

其實，絕大多數需要行賄的事件，都是公務人員的裁量行為。例如，興建公共建築之場地選擇、都市計畫土地用途之劃分、某種行為要不要課稅、某一個限制性標案要委託給誰；這些都是公務員的裁量權，他們要在眾多競逐選項中挑一個，選到某甲或不選某甲無所謂合法或不合法。但是，若要依此而把「違背職務」限縮為「非法」，復將「合法」等同於「不違背職務」，那就幾近是白目詮釋了。

以土地重劃或限制性標案為例，公務人員的職務，就是盡心努力、謀求國家社會的最大福祉。此外，依公務人員服務法，公務員不可藉權力「圖他人之利益」。因此，若是牽涉到多重選擇的公共政策或裁量，總是要經過行政程序法所要求的公聽會、審查會等程序，做好了公正評估再作出選擇，沒有使特定他人獲利，才能算是不違背職務。

再回到陳敏薰行賄求官的個案。官股顯然對於許多金控、證券等事業人事有主導裁量權，當事人才有行賄之必要。如果對於有裁量取擇的案件，主管機關因為賄款、高層指示或其他誘惑，就任意將國家財產給予特定個人，完全沒有評估分析，也不見謀求國家福祉的努力，這當然就是違背公務人員服務法所明定之職務。簡言之，貪汙治罪條例中行賄者是否有責的認定，絕不應該是公務人員行為本身是否狹義「合法」，而應包含所有廣義的公務員職務。司法上一定要如此認定，才能將關說遊說土地重劃者納入追究的範圍，也才符合社會正義的期待。

陳敏薰個案討論起來還算單純，因為她現已卸任行賄所取得的一○一董事長。但在過去數年的諸多二次金改案件中，有許多靠著官方「違背職務」的行政裁量，而取得千億百億國家金控資產的社會蠹蟲，他們不但用賄賂騙得了千億財產，至今還安安穩穩地吃香喝辣。如果司法對他們也不用追究，聽任他們一輩子享受以賄賂換來的巨額國產，人民這口怨氣恐怕會在以後的大選中翻湧而出。我們的法務部實在該重新思考「不違背職務」的庶民定義，不能再沉溺在法匠思考的框架中了。