論違反公序良俗條款而無效之合夥契約－－簡評臺灣高等法院99年度重上字第386號判決

The Void Contract of Partnership Due to the Violation of Public Order and Morality Clause- An Analysis on Judgment C. S. T. No. 386 (High Ct., 2010)

醫療器材公司為從國外輸入醫療器材，其（試驗委託者）通常委託醫師（試驗主持人）對醫療器材之安全與效能進行人體試驗。醫療器材完成人體試驗並向衛生福利部申請查驗登記，始得輸入。臺灣高等法院99年度重上字第386號判決認為：醫師與醫療器材公司負責人為圖私利合夥經營醫療器材之事業，並受負責人委託而提出人體試驗計畫，難以期待醫師能提出公正客觀之人體試驗報告，兩造合夥契約顯然背於公序良俗而無效。本文將從學說、實務見解與比較法的角度探討公序良俗條款，並參照美國生醫研究利益衝突管制之立法例，以探究法院見解是否妥適。

The company of medical implement usually entrust medical doctors to conduct human trial to test the safety and efficacy of medical implement in order to import medical implement from foreign countries. Medical implement could be imported after the safety and efficacy of medical implement are proved by the human trial and product license of medical implement are obtained from the Ministry of Health and Welfare. The contents of the judgment C. S. T. No. 386 (High Ct., 2010) are as follows: medical doctor who consider personal benefits agrees to put contributions in common for the business of medical implement with the owner of company of medical implement. However, it is hard to expect that the medical doctor could hand in the fair and object the report of human trial regarding the safety and efficacy of medical implement, since the owner of company of medical implement entrust medical doctor to conduct human trial. Thus, the contract of partnership against public order and morality clause is obviously void. This article analyzed the public order and morality clause from perspectives of mainstream and judicial opinion. Furthermore, this article referred to the regulations of U.S. regarding dealing with the conflict of interest in biomedicine research in order to analyze the adequacy of the judgment of courts.