篇名

【醫療刑事法】子宮外孕誤診案:過失不純正作為犯之認定   免費試閱

並列篇名

Misdiagnosis of Ectopic Pregnancy: Judging the Criminal Offence Committed by Omission Courts and Japanese Courts

作者
中文摘要

最高法院108年度台上字第1768號判決暨歷審判決,係典型之過失不純正不作為犯,卻未區分作為義務與注意義務來分別討論,以致未論述到保證人地位,又歷審判決除對於病人第一次就診時是否違反醫療常規(注意義務)存有不同見解外,卻皆未審酌被告於病人第一次就診時未及時將病人轉診,已與轉診規定不符,顯然違反醫療常規乙節,故本文將探討作為義務與注意義務應予區別之理由,以及在醫病關係中,醫師基於事實上自願承擔之理由而具有保證人地位時,於病人兩次就診時本件醫師均未即時幫病人轉診,本文認定皆違反醫療常規,構成注意義務之違反,且說明各係違反醫療法第73條第1項所規定之何種轉診要件。文末另討論過失不存正不作為犯之因果關係界定,應拋棄作為犯常採取之相當因果關係理論,而以假設因果關係及客觀可避免性來認定較為妥適。

英文摘要

It is typically about the criminal offence committed by omission in the judgement of Supreme Court No. 1768 in 2019 and other relative judgements, but none of the judgments mentioned the difference between obligation of action and duty of care and even guarantor’s obligation. There were different opinions about whether the patient had broken the medical standard in the judgements. Furthermore, none of them had reviewed that it was obviously against the regulation of transfer that the patient wasn’t be transferred when he had the first appointment with the doctor. This study would focus on the reason for the difference between obligation of action and duty of care. Besides, it could be against the medical standard and caused the violation of duty of care in the issued case that the patient wasn’t transferred after two appointments with the doctor, since the doctor had the guarantor’s obligation on the ground of factually voluntary commitment. The elements for transfer according to paragraph 73 section 1 Medical Care Act would furthermore be explained. In addition, by discussing in this study about how to judge the causality for the criminal offence committed by omission, the hypothetical causality and the objective avoidability should be taken as the criterion instead of the theory of adequacy for active crimes.

起訖頁

076-106

出版單位
DOI

10.3966/241553062020020040006  複製DOI  DOI查詢

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