| 英文摘要 |
The trial of medical criminal cases in Taiwan is time-consuming and requires more trial time than other types of criminal proceedings. The dilemma of medical personnel is not punishable by penalties, but rather the lengthy time-consuming litigation and psychological pressure brought by criminal prosecutions . There is no difference between Taiwan and Germany in terms of the relevant provisions of the criminal law. However, compared with Germany, the medical profession in Taiwan often suffers from lawsuits. The problem is not with the provisions of the criminal law itself, but with the application of the criminal law applicable to the law.In any act of behavior, there exists Cause/ Result relationship. An action may be the Cause that initiates a process to be put forth in motion, which derives at a certain Result. The occurrence of medical behavior is based on the premise that a prior lesion occurs, and a pathological causal process precedes after the initiation of the patient's life or the body and legal interests are attacked, will there be medical intervention. However, the lesion itself does not have the necessary interception, therefore, should not be given an absolute interception of medical acts as interception. Due to the diversity of individual human beings, medical behaviors are highly risky both in the diagnosis and in the treatment phase, which leads to the risk of being changed. In order to consider the patients' greatest interests and rapidly changing medical sites, clinical professionals should be given medical staff discreet space.Under the principle of equality, medical criminal cases and non-medical criminal cases apply the criminal law of the Republic of China. However, based on the characteristics of the above-mentioned medical behaviors, they have different legal application processes. This article sorts out the applicable process of criminal law applicable to criminal cases of medical negligence: (1) First, confirm the "scope" of the "medical obligation" of "medical staff" in the case. (2) if the "medical staff" has fulfilled the "medical obligation", then that person will not be guilty of a crime of negligence. (3) Whether there is an "objective (proposed) causal link between" medical practice "and" outcome "of" medical staff "and" failure to perform medical obligations ". (4) "according to the circumstances" and "medical staff" "should pay attention to and be careful not to notice" and therefore "negligent" failed to fulfill their "medical obligation". (5) "Elements of negative constitutional elements" - "Objectively unavoidable" have not been realized at the same time. Medical staff meet the above conditions to establish criminal liability for medical negligence.The Legislative Yuan read and approved the draft amendment to Article 82 of the "Medical Law" on December 29, 2017, of which the third and fourth stipulated the constitutional defects of the criminal liability of medical personnel and the discretionary matters. This revision is based on the "principle of equality". Legalization of “Criminal Cases Involving Medical Treatment (Application of Criminal Law) Highlights" has not substantially modified any criminal law nor has it limited the scope on the establishment of negligence for medical personnel. Enlisting "reasonable clinical professional discretion" into law ought to be the biggest highlight of this revision. However, due to the lack of content, it cannot be placed in the constituent elements of negligence as judgments, and it is difficult to achieve the purpose of legislation.While judiciary has recognized the "reasonable clinical discretion" for medical treatment, this article proposes further stipulating it in the "Essentials of Medical Discrimination Appraisal" as a criterion for fulfilling medical obligations in order to enhance its importance and propose amendments clarified the reasons, that follow-up medical treatment of criminal cases should pay attention to the point of legal amendments to the proposal. |
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