論內視鏡取證之容許性

Acceptability of Endoscopy as a Means of Collecting Evidence

本文擬討論內視鏡取證在我國現行法下之合憲性與合法性問題。具體以言，首先於前言指出問題之所在。接著論析兩則可資借鏡之日本判決，並指出其之貢獻有二。第一貢獻，係正確地指出內視鏡取證在對身體侵襲之程度上與強制採尿之情形具有異質性。第二貢獻，係進一步指出本件內視鏡取證之施術須先獲得被處分人「對醫療行為之同意」才能有效地「控制醫療風險」。於此前提之上，再分層討論內視鏡取證之合憲性問題與合法性問題。最後分析作結指出，若以「必須已取得被處分人之醫療上的知情同意」為大前提，係有可能將內視鏡取證解為合憲；不過，即便如此，在合法性之層次上，就我國之解釋論而言，仍應將之解為係屬法無明文之強制處分。

This article intends to discuss the constitutionality and legality of endoscopic evidence collection under our country’s current laws. To be more specific, the article first points out the issues to be discussed through this research in the preface. Then it analyzes two Japanese judgments that can be used as reference, and points out that they have two contributions. The first contribution is to correctly point out that the degree of possible invasion of the body caused by endoscopic evidence collection is heterogeneous with that of forced urine collection. The second contribution is to further point out that the implementation of endoscopic evidence collection must obtain concerned party’s“consent to medical behavior”in order to effectively“control medical risks.”Based on this premise, we will discuss the constitutionality and legality issues of endoscopic evidence collection respectively. Finally, it was pointed out in the conclusion that if“the informed consent of the concerned party must be obtained”as the major premise, it is possible to interpret endoscopy evidence collection as a measure consistent with the constitution; however, even so, at the level of legality, as far as our country’s interpretation is concerned, if there is no clear provision in the applicable law, it should still be interpreted as an illegal prosecutors’order.