A Study on the legal liability of Bid Collusion in Government Procurement：Focus on the interaction of Administrative Responsibility and Criminal Responsibility

• Main Authors: Chih-Ho Hsieh, 謝至和
• Other Authors: Chia-Chi Lin
• Format: Others
• Language: zh-TW
• Published: 2018
• Online Access: http://ndltd.ncl.edu.tw/handle/a395en

碩士 === 國立東華大學 === 財經法律研究所 === 107 === Bid collusion destories the system of government procurement and affects the fair of competition among the bidders. Besides the criminal responsibility of the government procurement law, there is still the administrative responsibility of no restitution or recovery of bid bond and publish government procurement gazette. Because of the goal between administrative responsibility and criminal responsibility are different, the legal element of the responsibility is individual. Although the criminal responsibility is not to prosecuted or acquitted, the tender agency still can investigate by itself and make a decision independently. The issue about that the “No Double Jeopardy” principle is applied to administrative responsibility and criminal responsibility, involving the administrative responsibility is administrative act of punitive nature or not. This thesis argues that the administrative act of recovery bid bond is only the disadvantage of the bidder’s money, it also means fine instead, just administrative act of punitive nature, so that it should apply to the “No Double Jeopardy” principle. The regulative goal of the publish government procurement gazette avoids other administrative agency be impaired by debarred bidder, it is administrative act of a regulatory nature, doesn’t fit Administrative Penalty Act, and can be punished with criminal responsibility simultaneously. The court thinks that the administrative act of recovery bid bond is administrative act of punitive nature, the prescription of recovery starts from the administrative agency knowing the fact of bid collusion reasonably. According to the courts say, this thesis argues that the reasonable prescription of recovery should be started from the administrative agency knows the fact of bid collusion exactly, including whom、where and what. Based on principle of secret investigation、indictment without public procedure and presumption of innocence, this thesis argues the precise time that the administrative agency knows exactly to recovery bid bond is when the criminal court declare judgment after investigating