密醫罪構成要件與醫療行為概念

醫師法第28條之密醫罪構成要件，係以未取得醫師資格而執行醫療業務為核心，然而，何謂醫療業務與醫療行為，其意義與判斷，我國司法實務多以衛生主管機關意見為審查基礎，雖然該意見有其專業上判斷基礎，但是，對於犯罪成立的審查而言，法官當以主管機關的意見作為法律判斷之參考，而非可越俎代庖，率由行政機關之判斷作為犯罪成立與否之依據。本文建議，對於密醫罪構成要件之解釋，有鑑於醫療行為在醫療法領域的意指範圍過於寬廣，必須要從本罪之立法目的與犯罪屬性進行限縮，以避免適用範圍的過度擴張，甚至欠缺可預見性而違反罪刑法定原則之明確性要求。
比較分析各國學說與實務之見解，本文認為從密醫罪作為抽象危險犯之法律性質來說，應將本罪構成要件之醫療業務從兩個要素予以限定，一是以專業醫學知識與訓練為前提之業務活動，一是醫療活動之施行具有立即或重大之危險性。由於本罪旨在保護國民就醫的安全性，因此，在法律解釋上來說將醫療行為限縮在涉及醫療安全的範圍內應屬適當，尤其是考量民眾就醫上的自我保護能力與自主性，將不具安全顧慮者予以剔除，以符合其抽象危險犯之法律性質。

The crime of secret medicine in Article 28 of the Physicians Act is based on the practice of performing medical services without obtaining the qualifications of a physician. However, as to what medical services and medical behaviors are, our country’s judicial practice mostly uses the opinions of the health authorities as the review standard, although this opinion has its own merits. However, for the review of the establishment of a crime, the judge should use the opinions of the competent authority as a reference for legal judgment, rather than relying on the judgment of the administrative agency as the basis for the establishment of the crime. This article suggests that the interpretation of the constituent elements of the crime of secret medicine must be narrowed down from the legislative purpose and criminal nature of this crime in view of the fact that the scope of medical behavior in the field of medical law is too broad, so as to avoid excessive expansion of the scope of application. It even lacks predictability and violates the clarity requirement of the principle of legality of crime and punishment.
Comparatively analyzing the doctrinal and practical opinions of various countries, this article believes that from the legal nature of the crime of secret medicine as an abstract dangerous crime, the medical business that constitutes the crime should be limited from two elements. One is business activities that are based on professional medical knowledge and training, and the other is the performance of medical activities that poses immediate or significant risks. Since this crime aims to protect the safety of citizens seeking medical treatment, it is appropriate in terms of legal interpretation to limit medical behavior to the scope involving medical safety. Especially considering the self-protection ability and autonomy of people in seeking medical treatment, it will not be appropriate. If there are no safety concerns, they should be eliminated to comply with the legal nature of abstract dangerous crimes. Keywords: