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

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，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。如何回答這個問題，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，於妨害醫療罪之統計數據以觀。其次，本論文試圖分析妨害醫療罪之可能保護法益和法律規範，從而，先爬梳本罪的立法脈絡，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。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，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。最後，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。

Recently, criminal legislation has gradually moved towards the protection of hyper-individual 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 this crime 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 this crime, they still have not been elucidated in-depth. Accordingly, the elements of this crime cannot be formulated and explained closely with its legal interests. How to answer the question is not only related to the further clarification of the medical legal field, but also to the legitimacy of this crime and its future.
Firstly, this Article aims to demonstrate the current status of judicial practice trials, and starts from case statistics of the Offenses of Interference with Medical Practice. Secondly, this Article intends to analyze the possible legal interests and legal norms of this crime. It primarily focuses on grooming the legislative background to explore the possible legal interests of this crime. Afterwards, each normative type of this crime is 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 this crime, from the perspective of institutional protection and risk control, justifying the existence and the normative significance of this crime. Last but not least, this Article is in an attempt to review and illustrate the elements of this crime 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.