消極死亡協助與幫助自殺之刑法問題及對策【本期企劃】 試閱
Criminal Legal Issues and Solvation for Passive Assisted Dying and Assisted Suicide
醫師符合病人實際意願或推測意願的消極死亡協助，本質上是讓病人死於疾病的自然死，自非刑法意義的「殺人」或「自殺」。此在現行法上應屬無罪，其在釋義學上的理由，可能是在構成要件層次排除醫師的保證人地位，或阻卻外觀上依然符合殺人行為的中斷醫療違法性，而不受限於安寧緩和醫療條例與病人自主權利法的規定。誠然，推測意願須要求較高的證明，以免他人僭越病人自主，而過度侵害正需國家保護的病人生命。至於刑法第275條第2項的教唆或幫助他人使之自殺罪，縱使無法廢除，也應加以修法限制其範圍，而讓陷於生命困境的病人可藉由他人協助結束其生命。
A passive assisted dying by a physician according to the actual willingness or presumed willingness of patients would be essentially to let them die of natural causes, i.e. die from diseases. It wouldn’t be murder or suicide in the meaning of Criminal Law, and would be innocent according to the law in force. its reason in respect of the legal dogmatics might be that the guarantor’s obligations the physician had would be excluded concerning the elements of crime, or that the medical illegality would be interrupted, even though the issued act seems to correspond with the elements of murder. The related regulations of Hospice Palliative Care Act and Patient Autonomy Act wouldn’t be valid. Indeed, a presumed willingness needs more proof or someone would overstep the patients’ autonomy, and therefore insult excessively the patients’ life which needs the state to take protection. As to the suicide arising from an abetment or an assistance of someone according to paragraph 275 section Criminal Law, a restriction of its range should be added by legislature, even though it wouldn’t be cease to apply, to let the patients who suffer from life difficulties could end their own life by the assistance of others.
036-046
