論過失相抵原則於受僱醫師過勞職災民訴之適用——評臺灣高等法院臺南分院一○二年度重勞上字第一號民事判決

Offsets Against Emplyed Overworked Doctors’ Negligence in a Damage Suit for an Occupational Accident: Comments on the (102) Jhong-Lao-Shang No.1 Decision Rendered by the Taiwan High Court Tainan Branch Court

The (102) Jhong-Lao-Shang No.1 Decision Rendered by the Taiwan High Court Tainan Branch Court is the first judicial decision which held that it is the hospital’s responsibility for damages under the Civil Code. It defined the employed doctors as labors and held that the Act for Protecting Worker of Occupational Accidents shall be applicable despite the fact the Labor Standards Act is not applicable. However, an offset based on the employed doctor’s negligence was recognized, and the subject shall be responsible for 65% of the damages due to the improper performance of the duty to care for health. According to Civil Code § 217, Offsets against victims’ negligence is recognized in determining the final amount of damages, but whether it shall be limited or modified in a damage suit for an occupational accident is seldom discussed in Taiwan. This thesis not only gives comments on the (102) Jhong-Lao- Shang No.1 Decision Rendered by the Taiwan High Court Tainan Branch Court, but also discusses the issues aforementioned and does the comparative study on Japan.