齊頭式平等真的是正義嗎？論刑事訴訟法修正後產生之醫事鑑定困境及可能解方【本期企劃】 試閱
Is the Formal Justice the Real Justice? On the Dilemma of the Medical Expert Opinion and Its Solutions According to the Amendment of the Criminal Procedure Law
我國刑事訴訟法於2024年5月15日施行修正條文，新增鑑定人須具結、具名及出庭說明之規定，藉以呼應2017年司法改革國是會議之決議開啟了鑑定制度改革。但司法院立意良善的法律修正案，卻低估了制度落地後的醫事鑑定可行性問題。在缺乏對制度配套的全面規劃，單靠強制具名與出庭，恐造成「刑訴改革成功、醫療實務崩壞」的鴻溝。鑑定醫師因身分揭露可能面臨請託、壓力或報復等風險，加上臨床工作繁重，參與鑑定意願大幅降低，導致衛生福利部醫事審議委員會無法持續辦理刑事醫事鑑定，進而影響檢察機關偵查及民眾釐清訴訟真相之權益。為解決此困境，相關部會積極溝通協調，推廣醫療爭議調解制度之先行適用，並推動「醫療專業意見」試辦計畫作為過渡性解方。本文旨在分析刑事訴訟法修法後，醫事鑑定制度所面臨的困境及因應措施，並期盼未來透過修法完善醫事鑑定之相關機制。
The Criminal Procedure Law was amended on May 15th 2024, to add the requirement that the expert examiner must give a statement, name, and explanation in court, in response to the resolution of National Conference on Judicial Reform in 2017, which initiated the reform of the expert examination. However, the Judicial Yuan’s well-intentioned amendment to the law underestimated the feasibility of medical expert examination after the implementation of the institution. In the absence of comprehensive plan for it, relying solely on mandatory expert examination and court appearances may lead the success of the criminal persecution reform, but the collapse of medical clinic. As a result of the risks that physicians may face due to disclosure of their identities, such as trust, pressure, or retaliation, coupled with their heavy clinical workloads, their willingness to participate in expert examination has decreased dramatically, making it impossible for the Medical Review Board of the Ministry of Health and Welfare to continue to conduct criminal medical examinations, which in turn affects the interests of prosecutor’s investigations and the public in determining the truth of the litigation. To solve this dilemma, the relevant ministries have actively communicated and coordinated with each other to promote the application of the mediation system for medical disputes and to promote the “Medical Professional Opinion” pilot program as a transitional solution. The purpose of this essay is to analyze the dilemma faced by the medical expert examination after the amendment of the Criminal Procedure Law and the corresponding measures, and to hope that the mechanism of medical expert examination will be improved through the amendment of the law in the future.
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