苦藤粉案：密醫罪「醫療業務」定義之妥適性【學習式判解評析】 試閱
A Case about Powder of Tinospora Crispa: Aptitude of the Definition of medical Practice concerning the Crime of Fake Doctors
未取得合法醫師資格者，見他人臉上有紅斑而給予苦藤粉供其服用，卻發生肝衰竭致死。此行為是否犯密醫罪，涉及構成要件「醫療業務行為」之定義，然因無法律明文，迭經主管機關多次函釋，數十年來雖已為所有司法、行政機關及學說所沿用，然其妥適性殊值商榷。至於過失致死罪部分，涉及行為人之注意義務，無論係主管機關法規之缺失，及需高度專業性或仍未知之毒性，要求非專業者盡到查證義務，實屬過苛。本文以本案之判決理由為例，進行評析。
A person who was not legally qualified as a physician gave the powder of tinospora crispa to another person for consumption when seeing red spots on his face. The latter died of liver failure. Whether this kind of action would be a fake doctor, is about the definition of the “medical practical action.” However, it’s aptitude would still be to confirm because it lacks of any legal norm, even though there have been many instructions from the authorities which have been cited by all of the juridical as well as administrative authorities and legal scholars. As to the crime of negligent homicide, it involves the duty of care of the perpetrator. But it is too harsh to require non-professionals to fulfill their duty of care, whether it is due to the lack of regulations of the competent authorities, the need for a high degree of professionalism or unknown toxicity. In this paper would the reason of the judgment be discussed as an example.
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