篇名

【醫療刑事法】再審無罪案:重新鑑定之評價   免費試閱

並列篇名

Retrial of Guilty: The Evaluation of Re-Expert Testimony

作者
中文摘要

臺灣高等法院107年度再字第7號判決係採用本案被害人對被告所提損害賠償之民事訴訟,被告及其辯護人於該民事訴訟審理時所聲請調查之重新鑑定意見作為新證據,因而推翻前審判決有罪之認定改判無罪,機關鑑定向來即屬醫療訴訟最常使用之證據方法,惟再審判決援引非由醫審會鑑定之重新鑑定意見,卻未說明重新鑑定機關是否如同醫審會般設有規範要點,以維持其中立性,復未能辨析民、刑事訴訟對於過失、因果關係之認定及心證程度之要求均不相同,能否直接援引民事訴訟調查所得結果作為刑事新證據使用,皆需在再審判決理由中進一步說明。況若肯認重新鑑定意見可資作為新證據,爾後會產生持續的鑑定循環乙情亦可想像,是再審判決若要援用,宜先交代前審判決所引醫審會鑑定意見有何不妥之處,方能呈現重新鑑定之必要性。

英文摘要

As a civil judgment, the retrial judgment No. 7 of Taiwan High Court in 2018 was about the compensation held by the victim to the accused. The accused with the company of the defender took the re-expert testimony during the requesting for the investigation in the civil procedure as an evidence. The former guilty judgment had been overthrow and a new verdict of innocent brought as the consequence. The expert testimony by authorities is always one of the usual evidence during the medical litigation. Nevertheless the issued judgment didn’t take the re-expert testimony made by the medical review committee, nor explain whether another authority making the expert-testimony has standard regulations like the committee to hold the neutrality of the court. Furthermore is there a great difference of the negligence, causality and the evaluation of the evidence between civil and criminal procedure. It should be necessary to be explained in the retrial judgment whether the civil evidence could be taken as a new evidence in the criminal procedure. If positive, there might be a continuing circle of testimony. If the civil evidence had been taken eventually in the retrial judgment, it would be better to explain the impropriety of the testimony by the medical review committee which had been taken in the former judgment to express the necessity of the re-expert testimony.

起訖頁

078-101

出版單位
DOI

10.3966/241553062020100048006  複製DOI  DOI查詢

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