衛生福利部立醫院藥品採購刑事判決評析--以所屬醫院醫師受有不正利益為中心

Abstract

衛生福利部立醫院為治療病患而購置藥品，為提昇醫療品質而指派醫師審查院內用藥，由於涉及政府採購作業規定及公眾福祉，倘有醫師未經週慮思量而收受廠商不正利益，是否構成刑法上之公務員而適用貪污治罪條例？\n 本文擇衛生福利部所屬臺東、屏東及南投等三家醫院醫師受有不正利益之判決為例，經深入探討歷審法院判決情形，大多以有無依政府採購法規定承辦、監辦採購業務為判斷基準，甚至只要有實質影響藥品採購，即認為屬於刑法第10條第2項修正後「其他依法令從事於公共事務，而具有法定職務權限」之情形，也因為對於政府採購人員採實質參與採購業務的廣義概念，進而不斷地擴大刑法授權公務員適用之對象，由於判斷標準不一致，導致判決確定時程延長。\n 事實上，採購本質屬私經濟行為，政府採購法雖然定有公法上的訴願程序，但其目的在給予廠商有一適當之救濟管道，而不在使採購人員成為刑法上之公務員，此外，衛生福利部立醫院的醫療行為並非行使公權力，而醫院為達成醫療目的之所為採購，更難認屬國家機關居於執行公權力之地位。\n 最後，期待透過本研究對於衛生福利部立醫院所屬醫師，得以建立一更加明確及公平之法律環境。

The concurrence of Anti-Corruption Act and Government Procurement Act is a controversial issue in practice. \nThe definition the public official is stipulated at ROC Criminal Code in Paragraph 2 of Article 10. Nonetheless, it is important yet difficult to define the roles of public officials under various purposes to protect public interest as well as to prevent corruption behaviors. \nIn Taiwan’s National hospital system, person who be on duty and collect undue money are public officials under Paragraph 2 of Article 10 of the ROC Criminal Code when the individual offense is proposed to protect people from infringement of freedom and financial loss, and the person could be charged with Bribery, Extortion or Misconduct in Office.\nThe Law of Government Procurement in a sense was created to reduce this kind of disputes and arguments as much as possible if followed by both sides and to fulfill the task given by the superior from their organizations.\nThis study aims to discuss the boundary when applying Anti-Corruption Act and Government Procurement Act by introduce real criminal cases of physicians in the Ministry of Health and Welfare affiliated Hospitals (MOHW). These physicians purchase drugs for the treatment of patients, and also examine drugs to ensure the quality of medical treatment. They serve as public officials at the same time. However, are they conduct public power when doing the foresaid treatments and examinations? Moreover, if any physician get paid or inappropriate benefits from suppliers, will the physician be charged with corruption as a public official? These cases including Taitung, Pingtung,\nThis study is divided into five chapters. Besides its introduction (first chapter) and conclusion (fifth chapter), the main chapters serve to explain the systems of the Anti-Corruption Act and Government Procurement Act. It focuses on not only the course of change and development in the National hospital system but also its problems in theoretical basis.\nIt is found that the provision of medical services by the Ministry of Health and Welfare affiliated Hospitals is not considered as exercising of public power. Thus, the conductions of the physicians in accordance of Government Procurement Law by the MOHW affiliated hospitals should not be regarded as public power exercised by the public officials. It is hoped the study, based on comparing and reviewing the criminal cases to clarify the controversial issue between Anti-Corruption Act and Government Procurement Act, helps the physicians of MOHW understand the possibilities of offense and infringement and therefore be careful not to fall into the traps in the future . .