親自驗屍義務之歷史、現況與相關醫學檢查之發展

Historical Development, Current Status, and Advancements in the Duty of Personal Autopsy: A Study on Forensic Pathology and Related Medical Examinations

本文探討驗屍、相驗及相關醫學檢查之發展。本文以醫師法第11條之1之規定作為開宗明義之論述，其次依醫師親自驗屍、法醫師、醫師或檢驗員相驗、相驗義務之界定等議題，分別探討親自驗屍義務之歷史與現況，接著依非病死或疑為非病死者、病死者相關問題，釐清死亡原因與相驗之區別，然後評析我國相關法規、衛福部函釋及法院判決，探討醫師親自驗屍方得開立死亡證明的相關議題，接著彙整美國、英國、加拿大及澳大利亞等先進國家相關的立法與執行方式做為我國改進之參考，最後提出我國法院對於親自驗屍義務已然採用實質掌握原因之解釋、死亡之判斷分為事實確認與原因判定及宜以具醫師資格之法醫師為司法相驗主力，屍體相驗回歸法醫師專業進行，而不以當面驗屍為必要之相關結論與反思。

This paper delves into the history of legal aspects of autopsies, postmortem examinations, and the progress made in related medical investigations. The discussion begins by establishing the context through the provisions of Article 11-1 of the Physicians Act. Subsequently, various topics such as the duty of personal autopsy, forensic pathologists, physician or examiner post-mortem examinations, and the obligations associated with these examinations are explored. The historical background and current state of the in-person autopsy mandate are discussed, followed by an examination of issues related to non-diseaserelated or suspected non-disease-related deaths, as well as those pertaining to deaths caused by illnesses. The aim is to distinguish between determining the cause of death and the need for post-mortem examinations. Furthermore, an analysis of relevant laws, regulations, interpretations from the Ministry of Health and Welfare, and court judgments in Taiwan is conducted to discuss the pertinent issues concerning the issuance of death certificates post in-person autopsies by physicians. Additionally, legislative and operational practices in advanced countries such as the United States, the United Kingdom, Canada, and Australia are synthesized as references for potential improvements in Taiwan. Finally, this paper proposes that Taiwan’s courts adopt an interpretation that emphasizes a thorough understanding of the actual cause of death, separating the determination of facts from the determination of cause, and assigning qualified forensic pathologists as the primary experts for judicial post-mortem examinations. Our study also suggest that post-mortem examinations be entrusted to forensic pathologists to ensure a professional approach. We also suggest that inperson as a mandate for autopsies may not be a necessity.