聯合報編輯將標題改為「泥巴戰...你真的用同一標準？」（2006.11.15）以下為原稿。

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泥巴戰是公民文化的契機

廖元豪

（政治大學法律學系助理教授，台社成員）

在藍綠政治首腦同時因某種「費用」而陷入貪污指控之際，藍綠政治人物也同時發動了「司法泥巴戰」，以刑事告發之方式控告卸任與現任無數行政首長。如今所有曾領過特別費或類似名目的公務人員，無不風聲鶴唳，人心惶惶。

弔詭的是，這一串「告發」行動，並不是真心想要如此普遍地「追究不法」。相反的，他們真正目的卻是要藉由「人人都爛」、「制度殺人」的表象，來掩飾政治責任與結構共犯。作為納稅人與公民，我們該怎樣看待這樣的現象？

其實從樂觀的角度來看，我倒認為這種泥巴戰反而是刺激我們反省既有的政治慣行，重新醞釀真正公民文化的契機。

首先，這一串泥巴戰有著「除魅」的效果。台灣雖然民主化多年，然而不少民眾依然存有「尋找聖君」或「信賴好人」的迷思，致使真正的公眾監督始終未能充分建立。在泥巴戰中，新舊好壞政客都一下子成為「犯罪嫌疑人」！無論最後他們是否在法律上被判有罪，至少都受到了公眾與司法的質疑以及檢驗。以後，當政治人物再動輒說「相信我」，或是試圖建立「品牌」、「神格」形象的時候，就不再那麼有用了。民主政治的前提，必須建立在公民對政客的「不信任」而非「擁戴」。而這次事件或許是一個開端，讓公眾開始更加質疑每一個政治人物—而不是僅質疑「對方陣營」。

其次，「公私不分」的政治文化有機會受到深切的反省。在特別費與國務機要費事件中，我們看到太多公私難分的現象。最根本的問題，就是為何編列龐大國家預算去讓個別行政首長支應紅白帖、交際、餽贈的花費？在這種制度下，顯示選民往往只把「公僕」當作「私僕」，而政治人物更可以公費鞏固個人政治地位！然而，我們怎能容許國家法令、公共資源正式為這種現實政治文化背書？如果從此以後，再也沒有那種「無須收據核銷」的設計，或許可以稍稍減少假公濟私的情況。

「公私不分」也體現在「一半免檢據核銷」的設計。當法令規定某筆經費無須檢據報銷而可自由運用，這筆費用在「事實上」形同個人收入—不論法律上稱之為「薪資」、「費用」或「補償」。即便法律在形式上規定要用在「公務用途」，由於完全沒有查核可能性，頂多成為訓示規定。然而，同一個名目的費用，哪有「半公半私」的道理？如果是公務用途，就要清楚地檢據報銷；如果要作為實質上加薪，那就通統自由運用。「一半無須檢據報銷」的規定（或慣行）本身就反映了前現代的私人化政治。

除了檢討政客與政治文化以外，泥巴戰也讓藍綠的死忠支持者都有更多自我反省的機會。雙方支持者必然會陷入天人交戰，捫心自問：「我真的用同一個標準對待兩派政治人物嗎？」多少人喊了數年都做不到的「超越藍綠」，或許在泥巴戰中卻意外地實現了。

我們的法律制度，其實非常不鼓勵「公益訴訟」；但藉由刑事訴訟的告發制度，人民卻找到了藉由司法監督政治的路徑。或許絕大部分的被檢舉人並不違法；但在現行制度下，卻也只有刑事偵查，能夠把一切攤在陽光下，讓我們人民看清他們做了些什麼。這一串司法案件，重心不只在於「結果」是否有罪，而在於它的過程已經挑戰既有的政治結構與文化，而這種挑戰與質疑，就是重省台灣公民文化的契機！

紐約州的審計長把政府人員拿去照顧自己的妻子與其他家務。在被揭露後，於刑事追訴（所謂「詐欺政府罪」）的威脅下，以還款、罰金，與辭職交換不坐牢…

如果照這個標準，「阿卿嫂」案就可以讓陳水扁離職後被判刑（當然，有人主張「永久豁免權」與「絕對豁免權」…也許阿卿嫂事件涉及國家機密也不一定…）

紐約州的條文是這樣的—



§ 195.20 Defrauding the government.
A person is guilty of defrauding the government when, being a public servant or party officer, he:
(a) engages in a scheme constituting a systematic ongoing course of conduct with intent to defraud the state or a political subdivision of
the state or a governmental instrumentality within the state or to obtain property from the state or a political subdivision of the state
or a governmental instrumentality within the state by false or fraudulent pretenses, representations or promises and
(b) so obtains property with a value in excess of one thousand dollars from such state, political subdivision or governmental instrumentality.
Defrauding the government is a class E felony.


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以下是紐約時報的報導：







New York Times

December 23, 2006

Hevesi Pleads Guilty to a Felony and Resigns
By MICHAEL COOPER

ALBANY, Dec. 22 — After calmly assuring a judge that he was not under the influence of alcohol or drugs and agreeing to pay a $50 fee so that his DNA could be included in a statewide database of convicted felons, State Comptroller Alan G. Hevesi pleaded guilty Friday morning to defrauding the government and resigned from office.

Mr. Hevesi, the state’s top fiscal watchdog, told the court in a hoarse voice that one of the state workers he had assigned as a driver for his wife, Carol, had done much more than provide security for her. Prosecutors filed court papers revealing that the worker had also watered her plants, driven her to Bloomingdale’s and dropped off her dry cleaning.

“I apologize to the court, but until this issue became a public matter, I did not plan to reimburse the state for his time,” Mr. Hevesi told the court under oath, in a reversal of the statements he made this fall during his successful re-election campaign.

In a deal with the Albany County district attorney’s office, Mr. Hevesi pleaded guilty to a single felony, agreed to pay a $5,000 fine on top of the more than $206,000 he has already reimbursed the state, and agreed to resign for the rest of his current term and for the term that begins Jan. 1. The agreement will spare him prison time.

His resignation, which took effect immediately, left the comptroller’s office being run by Thomas Sanzillo, the first deputy comptroller. The State Legislature, which will choose Mr. Hevesi’s successor, is unlikely to do so until mid- to late-January at the earliest, officials said. That could lead to a constitutional showdown about the post.

Gov. George E. Pataki said Friday that he was concerned about the long lag time before the Legislature selects Mr. Hevesi’s successor, given that the state comptroller is the sole trustee of the state’s $145.7 billion pension fund and its investments. An aide to the governor said that Mr. Pataki was exploring whether he can appoint an interim comptroller — something Assembly Democrats say he cannot do.

“I’m concerned about, in the interim, what might happen here,” Mr. Pataki said at a news conference in the Capitol. “It’s a more than $100 billion fund that is in trust for the people of this state, particularly the retired employees of this state, and the stock market and the world economy can be very volatile. And I am concerned that if there is another 10-week or longer process, as to how that office will function.”

But Assembly Speaker Sheldon Silver, who has the most influence in picking a new comptroller, said that he was “comfortable” with Mr. Sanzillo serving in the interim, and questioned the governor’s legal authority to fill the post. A spokesman for the State Senate said the Senate was looking into the issue.

The comptroller’s office recently blocked several large contracts the governor had sought.

The resignation and the guilty plea capped a stunning fall from grace for an official who was first elected to the State Assembly 35 years ago, and who went on to serve as New York City comptroller for eight years before running unsuccessfully for mayor in 2001 and then being elected state comptroller in 2002.

Mr. Hevesi arrived at the courthouse at 10:15 a.m. on foot, surrounded by his lawyers and his children, and exchanged pleasantries with the reporters and photographers who had gathered there before going inside to be processed, and to pose for a mug shot. An hour later, he entered his plea in a packed courtroom.

For more than half an hour, Albany County Judge Stephen W. Herrick went over the terms of the plea agreement and asked him routine questions like whether he was under the influence of drugs or alcohol. Then, the judge asked Mr. Hevesi, “How do you plead to Superior Court Information 06-473 charging you with defrauding the government in violation of Section 195.20 of the penal law?”

“I plead guilty, sir,” Mr. Hevesi replied.

The comptroller signed a letter addressed to Mr. Silver, the Assembly speaker, and Senator Joseph L. Bruno, the Senate majority leader, writing, “I hereby resign my position as comptroller of the state of New York effective immediately.”

The letter states that he also resigns his position for the term that begins Jan. 1, but Judge Herrick said Mr. Hevesi would need to send a second letter postmarked after Jan. 1 to resign from the next term. The judge set sentencing for Feb. 9. Officials said Mr. Hevesi is not expected to face jail time if he meets the terms of the plea.

Outside the courthouse, Mr. Hevesi faced a group of reporters and photographers and apologized to the people of New York, his family and “the 2,400 professionals in the comptroller’s office, who have done a remarkable job over the last four years, maybe unprecedented job, in protecting the taxpayers and leading a reform movement.”

A deposition prosecutors filed in court on Friday detailed the many personal errands that the main driver assigned to Mrs. Hevesi, Nicholas Acquafredda, had done for her, including picking up dishes from her sister, driving her to Bloomingdale’s and staying in the car while she shopped and picking up items for her at B.J.’s Wholesale Club. The deposition said that Mr. Acquafredda also performed work at her house, including taking out the trash, hanging curtains and picture frames, and moving her furniture.

The plea agreement was a high-profile victory for the new Albany County district attorney, P. David Soares, who has vowed to bring more government corruption cases. Mr. Soares said that his office had received “a number of tips of improprieties” in government and that it would look into them, but lamented that his staff is small.

The plea deal also removed a significant potential headache for Governor-elect Eliot Spitzer, a Democrat who had made it clear that he would seek Mr. Hevesi’s removal from office next year if necessary — which could have cost him significant political capital.

Mr. Spitzer called the comptroller’s resignation “a sad but necessary action” and went on to list some of the qualifications he would like to see in a new comptroller.

“He or she should have significant experience in financial matters,” he said in a statement. “This is imperative given the comptroller’s role in managing one of the nation’s largest pension funds; and he or she should be a person of unquestioned integrity who will act independently in the interests of taxpayers.”

The next comptroller will be chosen by both houses of the 212-member Legislature voting together, meaning that the next comptroller will need the votes of 107 lawmakers, giving Mr. Silver and the 108 Assembly Democrats the upper hand in selecting Mr. Hevesi’s successor. Mr. Silver said in a statement that the Legislature would do so “in partnership with the governor-elect.” Already a number of Assembly members, a county comptroller and others have expressed interest in the post.

The charge that Mrs. Hevesi used a state worker as a driver was first brought by J. Christopher Callaghan, his little-known, under-funded opponent, before he decisively lost the November election to Mr. Hevesi.

“Albany is constantly ridiculed as a dysfunctional state government,” he said in a statement. “But in this instance, when the people seem oddly content with an ethically challenged comptroller, Albany’s standards were higher. It makes me hopeful.”