論妨害醫療罪之規範適用與保護法益

A Study on the Application and the Legal Interests of Article 106 of the Medical Law

系所名稱：科技法律研究所
學位別：碩士
畢業學年：111
指導教授：廖宜寧
晚近以來，刑事立法逐漸走向對超個人法益的保護擴展，《醫療法》第106條修正案的屢次提出，正適其例。民國103年增訂《醫療法》第106條第2、第3、第4項之規定，即所謂「妨害醫療罪」；民國106年《醫療法》第106條第3、第4項再行修正，適用於對醫事人員、緊急醫療救護人員的所有妨害醫療行為，此後，《醫療法》第106條第3項在司法實務上高度適用。不過，妨害醫療罪的保護法益究竟為何，一直以來少有專文論及，學說上雖曾提出公共安全、醫療安全之類的抽象說法，但未見深入說理，以致於本罪的構成要件也無法緊扣其保護法益來制定和解釋。此外，依照目前立法體系，妨害醫療罪被編排於《醫療法》第106條第2、第3、第4項，但其處罰性質與所在罰則章的其他規範顯有體例不合之處。如何回答這些問題，既關係醫療法律界域進一步廓清，又關係妨害醫療罪存在的正當性及其未來走向。
本論文擬以司法實務審理現況為開端，從妨害醫療罪之統計數據、實際案例出發，點出本罪在規範適用上之疑難。其次，本論文試圖分析妨害醫療罪之可能保護法益和規範要件，從而，先爬梳本罪的立法脈絡，以歸納其整體規範目的，進而探詢其保護法益的可能性，復針對本罪的各個規範類型，逐個剖析相應的構成要件。再次，本論文針對「醫療制度」能否作為妨害醫療罪之保護法益，先以學者、專家對於制度、風險的定義為基點出發，復從制度保護視角、風險控制視角，予以證成本罪存在的正當性和規範意義。從次，本論文嘗試提出更為細緻的法益內涵和保護核心，以緊扣其來檢討和解釋妨害醫療罪的構成要件，進而明確規範所應嚴守的處罰界線。最後，臺灣立法素來存有品質粗糙、用詞不當、意旨模糊等問題，因而，本論文也進一步提供《醫療法》部分條文的修正建議，以符合保護「醫療制度」的時代意義和立法宗旨。

Recently, criminal legislation has gradually moved towards the protection of hyperindividual legal interests. The frequent promulgation of the amendments to Art. 106 of the Medical Law is a suitable example. Since Paragraph 2, 3, and 4, Art. 106 of the Medical Law was enacted in 2014, and subsequently revised in 2017, the Offenses of Interference with Medical Practice has been widely applicable in judicial practice. However, what are the legal interests of the Offenses of Interference with Medical Practice is still questionable. For now, it has been rarely discussed in academic studies. Even though the abstract statements such as public and medical security have been proposed as the legal interests of the Offenses of Interference with Medical Practice, they still have not been elucidated indepth. Accordingly, the elements of the Offenses of Interference with Medical Practice cannot be formulated and explained closely with its legal interests. In addition, according to the current legislative system, the Offenses of Interference with Medical Practice is arranged in Paragraph 2, 3, and 4, Art. 106 of the Medical Law; nevertheless, it is obviously inconsistent with other norms in the penalty chapter of the Medical Law. How to answer these questions is not only related to the further clarification of the medical legal field, but also to the legitimacy of the Offenses of Interference with Medical Practice and its future.
Firstly, this Article aims to demonstrate the current status of judicial practice trials. It starts from the case statistics to practical cases, pointing out the problems in the normative application of the Offenses of Interference with Medical Practice. Secondly, this Article intends to analyze the possible legal interests and normative elements of the Offenses of Interference with Medical Practice. It primarily focuses on grooming the legislative background and summarizing its normative purpose to explore the possible legal interests of the Offenses of Interference with Medical Practice. Afterwards, according to each normative type of the Offenses of Interference with Medical Practice, the corresponding elements are analyzed one by one. Thirdly, this Article is in a bid to prove whether the medical institution can be used as the legal interests of the Offenses of Interference with Medical Practice. It preliminarily focuses on the definition of the institution and the risk by scholars. Then, from the perspective of institutional protection and risk control, justifying the existence and the normative significance of the Offenses of Interference with Medical Practice. Fourthly, this Article is in an attempt to review and illustrate the elements of the Offenses of Interference with Medical Practice by putting forward a more detailed connotation of legal interests and the core of protection. It can also specify the line of punishment that should be strictly adhered to. Last but not least, Taiwan’s legislation has always had problems such as rough quality, inappropriate wording, and elusive meaning. Therefore, this Article further provides suggestions for amending some provisions of the Medical Law, in order to meet the contemporary significance and the legislative purpose of improving the medical institution.