負責醫師容留非法執行業務人員案：非法執行醫療業務之參與責任【學習式判解評析】 試閱
A Case about a Physician in charge who accepted illegally practicing Personnel: The Criminal Responsibility of the Physician Participating Practicing Medical Treatments Illegally
本案被告係醫療機構之負責醫師即院長，因院內容留未取得合法資格者執行物理治療業務，而遭檢察官以涉犯物理治療師法第32條第1項之非法執行物理治療業務罪起訴，歷審判決均以無法證明被告與行為人有犯意聯絡，或有指示、容任其非法執業之情事，故基於罪疑唯輕原則而對被告諭知無罪判決。本文認為縱使負責醫師確實知情並參與非法執業情事，由於此類非法執業構成要件性質上為親手犯，故負責醫師無法與違法執業之行為人成立共同正犯，僅得視行為人之犯意是否為其所引起而分別論以教唆或幫助犯。若負責醫師係單純知情而不予阻止，違反其保證人義務而不作為，則應成立不作為幫助犯。
The accused in this case is a physician in charge of a medical institution, i.e. a superintendent. He was accused by the prosecutor on the ground of practicing physical therapies illegally according to Paragraph 32 Section 1 Physical Therapists Act, because he had accepted whom practicing physical therapies without legal qualification. According to the judgments in each instances, the accused was innocent on the ground of in dubio pro reo, because it hadn’t been proven whether the accused had a complicity with the offender, or there had been any instruction or laissez-faire of illegally practicing. In the opinion of this essay, even though the physician in charge might realize and participate practicing illegally, he couldn’t be the joint principal offender with the offender, because the illegally practicing as such is essentially an offence committed with one’s own hand. It could be an abettor or an aider, depending on whether the intention of the offender would be arisen by him. If he just knew but didn’t stop it, he would offend against the duty as guarantor’s position and then become an omission offender which would be an omission aider.
080-095
