中醫與醫療法律之文獻探討

A Review of Studies in Traditional Chinese Medicine and Medical Law

現今醫藥觀念、醫療環境受到法律深刻地制約與影響，中醫發展亦是如此。舉凡醫藥人員的資格認定、醫療機構的設立、醫療保險的申請等，無一不與法律發生關係，因此本文嘗試探討近現代中醫與醫療法律相關之研究，作為進一步研究此課題之基礎。目前學界已有多篇論文討論古代中醫法制、醫病關係及醫療訴訟等問題，但對於近現代中醫與法律之關係，仍未深入研究，僅於論述中醫與政治之互動關係時，兼及近代中醫法律之形成過程。就現代醫療法學研究而言，研究方向已由醫事法學之建立至醫療責任、醫療訴訟之分析，逐步認識到中醫法律問題之特殊性，但仍未對近現代中醫法律規範之源流、演變及影響等作較為全面的檢視。綜上所述，本文認為探討中醫所受法律之影響課題，目前在學術界尚屬空白，有必要深入研究近現代中醫法律規範之思想、立法及實踐等面向，並將其內涵與西醫醫療法律進行比較，希望為完善中醫法律制度提供歷史經驗上之參考。

The present concept of modern medicine and the environment of medical treatment have great restrictions and impact by the law. It is also the same to the development of Traditional Chinese Medicine (TCM). In recognition of medical personal’s qualification, the establishment of medical institutions and application of medical insurance etc., they all are connected with law. Therefore, this article attempts to review the relevant legal studies in modern and contemporary TCM, which will serve as the basis for further study of this subject. There have been many articles in discussing problems related to legal system, physician-patient relationship and medical lawsuit in ancient time. But further study to the relation between modern and contemporary TCM and law, has not been reached. Only in the statement of inter-relationship between TCM and politics, the process of law making in TCM has been mentioned. In the field of modern medical law, the direction of study has been changed from establishment of medical law to analysis of medical responsibility and medical lawsuit, and gradually to realize the specialty of medical law in TCM. Yet, overall examination to the origin, changes and influence of medical law in modern and contemporary TCM hasn’t been made. From above points, the writers of this article consider the subject of how the influence of law to TCM is still a blank in academic area. It is necessary to study deeply the aspects of thought of law, law making and practice in modern and contemporary TCM, and to compare with western medical law, and with the hope to provide reference of historical experience for completing legal system of TCM.