刺青是否屬醫療行為?【醫事法學教室】 試閱
Does Tattoo Belong to Medical Treatments?
醫師法第28條規定未取得合法醫師資格者,不得從事醫療業務。因此若被認定是醫療行為且非醫師為之,即有觸犯刑法之虞。本文藉由探討刺青行為是否為醫療行為,嘗試界定醫師法第28條刑罰罰則之界限。首先就刺青係如何為之、傷及人體的程度為初步介紹;其次介紹臺灣主管單位及日本法院就刺青是否為醫療行為之意見,前者認為須依照實施之結果認定,後者則認為非醫師不得從事刺青行為。本文認為因刺青原則上僅在皮膚之真皮層施作,不會傷及皮下組織,故不應認為係侵入性之醫療行為,若有施作不慎造成傷害,則為刑法業務過失傷害之範疇,而不應用醫師法處罰。
It would be not allowed to practice any medical business without a legal certificate of the physician according to paragraph 28 of Physicians Act. It would be a crime, if a medical treatment was practiced by a person who wasn’t a physician. Discussing about whether tattoo belongs to a medical treatment, the punishment according to paragraph 28 of Physicians Act would be defined in this article. First of all, it would be briefly introduced how a tattoo be practiced and how hurt it takes to human bodies. Than, the opinion of administration in Taiwan and of the legal practice in Japan, whether a tattoo belongs to medical treatment, would be explained. According to the former, it depends on the consequence whether tattoo belongs to medical treatments, while it could not be practiced without a physician according to the latter. It could not be an invasive medical treatment because a tattoo would be practiced on dermis without any injury of hypodermis. It would be punished according to negligent injury because of malpractice in Criminal Law instead of Physicians Act.
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