在允許醫師為「醫療廣告」之後——憲法法庭112年憲判字第17號判決的相關法律問題【本期企劃】 試閱
After Medical Doctors Are Allowed to Advertise Medical Care: A Study on Legal Issues Derived from 2023 Judgment No. 17 of the Taiwan Constitutional Court
憲法法庭112年憲判字第17號判決宣告醫療法第84條「非醫療機構，不得為醫療廣告。」中「禁止醫師為醫療廣告」的部分、因違反憲法上言論自由的保障而違憲。本判決當產生後續對立法者、聲請釋憲法官以及原因案件當事人與類似案件當事人相關的法律效果，本文對此即予釋憲法理的分析。以及現如醫師可為醫療廣告，當亦應受相關法律的規範，就此醫療法（在修法前）能否即直接適用於醫師、以及各該規定之內容如何，本文亦為相關初步說明。
The Taiwan Constitutional Court, in Judgment 112-Hsien-Pan-17 (Judgment 17 of 2013) ruled that, by allowing only medical institutions to advertise medical care services, Article 84 of the Medical Care Act (MCA) has unconstitutionally violated doctors’ freedom of speech. This Judgment shall cause legal effects and influences to Legislators, the Judge who has applied for the Judgment, the concerned parties of the case, and people who may be involved in related incidence. This paper is thus aimed to discern the underpin jurisprudence of the Judgment. It needs to be discussed that how medical doctors should be governed by laws when advertising medical care services. Before related laws may be amended according to the mentioned Judgment of the Taiwan Constitutional Court (TCC), shall the Medial Care Act be applied to regulate the medical doctors? Which provisions of the Act should be availed of and how the law might be deployed to synchronize possible disputes shall be examined to respond to practical needs.
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