醫事刑法中假設同意的運用

The Application of Presumed Consent on Medical Criminal Law

醫師進行任何侵入性醫療，必須充分的履行告知義務，得到病人的有效同意。如果醫師不告知或沒有完整的告知，通常在法律上便不能立足。但是，德國的民事判決提出「假設同意」的概念，作為責任調整的機制，認為在假設同意的情況下，醫師沒有損害賠償責任。這個概念也在醫事刑法的判決中受到運用，並在刑法學說上引發熱烈討論。有學說質疑，醫師既未告知，病人情況也不是危急，侵入性的醫療便難以主張合法。運用假設同意的概念，雖然限縮了醫師刑事責任的可能性，但卻與病人的自主決定權不符。儘管如此，德國醫事刑法的實務判決仍然肯定假設同意的運用，但在刑法體系上如何定位假設同意此一概念，則有爭議。假設同意到底是排除構成要件的該當性或屬於阻卻違法事由，學說意見不一。本文認為，假設同意是例外被容許的專斷醫療。從假設同意在民事判決中萌芽到正式明文化，觀察德國刑事判決的援用及發展，可以肯定，要求醫師毫無遺漏向病人作出各種說明是不可能的。如果醫師無法盡到充分的告知義務，即科以刑罰，根本不利於醫師職業的發展或醫療條件的改善，甚至因而阻礙了醫學技術的進步。因此，根據刑法論理，限縮醫師說明義務的範圍，假設同意的運用，對於長期推動醫事刑責合理化的我國，無疑是另一蹊徑。

In order to obtain the patient's effective consent, any invasive medical treatment performed by a physician must be fully fulfilled with the duty to disclosure. Not having or not complete disclosed, the physician may be in the illegal position, it is often in the case. For adjusting obligations, however, the German civil judgements brought up the concept of “presumed consent”, under the mechanism of which the physician would be not liable to compensate. This concept was not only applied by the decisions of the medical criminal case, but also had heated discussions on the criminal law doctrine. There is a doubt that not having informed and the patient is not in an emergency condition, so the legality of invasive medical treatment is hard to claim. Even through applying the presumed consent, so decreasing the conviction rate of physicians, it would contradict the patient autonomy. Despite this, the German criminal judgements still affirm the application of presumed consent, but the controversy is how to define this concept in the criminal law system. Either the requisite elements or the condition to impede illegality, which one should be excluded, the academic theory opinions are still uncertain. This paper holds that the presume consent is an arbitrary medical treatment which is allowed to be exceptional. Following the development of presumed consent in the civil judgements from the initial to codification stages, then to observe the German criminal judgments, it can be ascertained that it is impossible to demand all physicians to make every explanations in detail to all patients. If not having fulfilled the full duties of disclosure, accordingly, the physician would be punished. It is unfavorable to improve the medicine and medical career’s conditions, and the advancement of medical technology will be hindered. Therefore, according to the criminal law theory, the scope of the disclosure duty of the physician needs to be limited. Undoubtedly, it is an alternative way for our country to promote the rationalization of medical criminal responsibility for a long time.