A Study on the Criminal Culpability Arising from Government Procurement Act from the Aspect of Legally Protected Interest
Date Issued
2014
Date
2014
Author(s)
Lin, Yung-Chi
Abstract
Government Procurement Act is one of the administrative law, so the crime chapter in it could easily be regarded as legally protected interest of state. However, with respect to the range and limit of legally protected interest of state, this thesis basically takes a conservative attitude to it, and against a priori protecting everything about country. Although some benefit have the assimilatory coloration, but when talking about criminal disposal, we still have to make a thorough inquiry of its substantive content inside. This thesis will be talking about how to define the legally protected interest of Government Procurement Act. If it is the “Competitive Order” which is protected, then figuring out what the substantive content inside will be the next topics. After confirming the definition range, the basic processes of procurement, and its criminal patterns, this thesis will use the theory of legal good to find the possibility of locate it on legally protected interest of personal or state. In the discussion of legally protected interest of state, it can be separate to two level: one is about “buy in”, which referring to the things that the nation buys in; the other is about “pay out”, which meaning the resources that the nation pays out. Speaking to the former, it is the question about what if the Act roughly protecting the “administrative purposes”; as for the latter, could be separated to volume and qualitative level. This thesis will start from the meaning of state property and the concept of public affairs in Criminal Law, and gainsay the possibility of locating legally protected interest on it. In addition, speaking to the discussion of the possibility of locating to the “Competitive Order”, this thesis will start from the concept of the competition, and the development of competitive system, then search the substantive content inside the “Competitive Order” as the legally protected interest of Criminal Law. It could be separated to personal benefit level and social benefit level. The former is talking about the personal economic interests of “major participants in the market” and “the average consumer”; the latter is referred to “the protection of competitive order” and “the maintenance of competitive function”. This thesis will use the theory of “Economics of Industrial Organization” to identify the possibility that can locate the legal good on “competitive function”. After that, this thesis will take the conclusion to reexamine the provisions of the criminal chapter in Government Procurement Act and submitting the possibility of limited explanation from legal good. In the end, with regard to the “accompanying-bidding” situation, the courts usually consider it as a criminal behavior, but this thesis will explain why we should take it to decriminalization from the legally protected interest perspective.
Subjects
the theory of legal interest
legally protected interest of state
bid collusion
bid rigging
accompanying-bidding
competitive function
Economics of Industrial Organization
SDGs
Type
thesis
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