說明義務與詐欺罪之交錯：告知說明義務違反與不作為詐欺【學習式判解評析】 試閱
The Intersection of Duty of Disclosure and Fraud: Breach of Duty of Disclosure and Fraud by Omission
本案判決焦點主要在於，當醫師違反告知說明義務致病人花費金錢接受治療時，是否有成立不作為詐欺之可能。本文首先從告知說明義務在刑事責任上的意義談起，探討因醫師違反告知說明義務致影響病患承諾有效性所可能產生的法律效果；其次，則討論本案爭點「醫師施作該術式之案例數及成功率」及「替代治療選項」是否亦屬醫師告知義務之範圍，並說明在何種情形下醫師對於替代治療選項始負有告知說明義務；最後，則釐清告知說明義務違反與不作為詐欺的相關問題。
The legal issue of this case is on the possibility of fraud by omission when a physician breaches his duty of disclosure, causing the patient to spend money on treatments. The essay would discuss first the meaning of the duty of disclosure in terms of criminal liability, and explore the possible legal effects of breaching the duty of disclosure by a physician, which may affect the validity of the patient’s promise. Secondly, it would be discussed whether the “number of cases and the success rate of the procedure performed by the physician” and any “alternative treatment option” are within the scope of the physician’s duty of disclosure, explaining under what circumstances the physician has this kind of duty concerning the alternative treatment option. Finally, the issue of breaching duty of disclosure as well as the fraud by omission would be clarified.
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