醫事鑑定制度之改革芻議－－以大陸地區及日本經驗為借鏡

The Reform of Medical Testimony Process Inspired by Foreign Experience—with reference to Mainland Area and Japan

我國醫事鑑定制度令病、醫、法三方指摘詬病，究其原因，應是目前機關鑑定模式嚴重背離民、刑事訴訟法之程序正義，導致憲法所保障之司法審判權與當事人訴訟權均遭剝奪，無從確保該證據方法客觀中立之故。本文以大陸地區與日本醫事鑑定制度之變革經驗為題材，觀察其趨勢並擷取值得參考之處，試為我國醫事鑑定目前之困局提出改革芻議。此二醫事鑑定制度改革之背景或方式並不相同，但均朝向落實法院審判權與保障當事人訴訟權之趨勢發展，觀察其變革關鍵之一，即在於採「多人」鑑定模式，雖課予鑑定人具結、到庭說明與接受詰問之義務，但彼國實證經驗顯示，此模式不至於造成鑑定人選任困難，形式上可落實司法機關對鑑定意見踐行證據調查之程序保障，確保司法審判權與當事人訴訟權，並可藉由營造「專家間戰爭」之機會，實質上協助司法機關對各鑑定意見進行專業審查。本文考量我國現行法之規定與目前醫界生態與條件，認為現階段可考慮「改良式複數自然人（個別）鑑定」或「多人初鑑之改良式機關鑑定」等多人鑑定方式，可於形式上確保司法機關之審判權以及當事人之訴訟權，實質上補強司法機關對鑑定意見之審查能力，似可做為全面適用民、刑事訴訟法鑑定規定前之過渡方式。

The contemporary medical expert testimony procedure of medical malpractice litigations in our country has been denounced as ＂black-box operation＂ for a long time, because it gravely infringes and overturns the due process of evidence rule in our Codes of Civil and Criminal Procedure, and violates not only the judicial power of determination but also the right to institute legal proceedings as safeguarded by of the Constitution. This article reviewed the evolution landmark of medical expert testimony procedures of Mainland Area and Japan in the past 10 years, and made an attempt to retrieve the essence of their experience to success in the reform of these procedures. These two countries took a quite different approaches to reform their own medical testimony procedures, yet coincidently proceeded toward a unanimous goal, that is to safeguard and implement the judicial power of determination and the right to institute legal proceedings. It is believed that the crucial factor in their accomplishments would be the adaptation of their medical testimony procedure into a mode of multiple expert witnesses, which proved itself to be an efficient way to examine the admissibility and probative value of these testimonies in medical malpractice litigations. The mode of multiple witnesses, to a great extent, relieved the peer stress among the expert witnesses, so that they would be more willing to sign an affidavit, to report verbally and to be examined by the court and both parties. Besides, the court might create a kind of battles among the multiple expert witnesses to help the court weighting the probative value of their testimonies. After taking into consideration of the expert testimony procedure performed contemporarily in Medical Review Committee and the complicated ethics of relationship between physicians, two feasible reform options were advocated, namely ＂multiple testimony by multiple expert witnesses＂ and ＂multiple expert witnesses in modified Medical Review Committee mode＂. Hopefully, these reform options might help in our medical malpractice litigations.