A Study on the Article 28 of the Physicians Act:Focused on Clerk and Intern

The right to work is enshrined in the Constitution, however, such a right for specific vocations can be subjected to limitation and restriction from laws. In the Republic of China(R.O.C.), due to the fact that medical practice is categorized as one of the professions, physician’s practice with no license will violate the criminal law (The Article 28 of the Physicians Act) in addition to the administrative law. This thesis reviews the historical context and legislative record of the Article 28 of the Physicians Act and analyzes similar regulations from other nations, and comes to acknowledge the Article 28’s legal interest, the public health. But the study also reveals problematic issues of the Article 28: First, the Article 28 excludes all the other practices that do not belong to the system of modern medicine. Consequently, patients’ self-decision right is inappropriately limited by the legal paternalism and that the legitimacy of the offence of the Article 28 is shaky. Second, the fact that clinical medicine education is required for medical students, and that there is a gap of time between their graduation and the acquisition of the license, leads to the risk of offending the Article 28. How to take the training and cultivating aspect of medical manpower into account and to protect the safety of patients at the same time should be considered in the explanation of the Article 28. Last, medical interns should have the right to practice medical treatment under the supervision of physicians. If the Article 28 adopted the concept of “the reservation of physician ” developed from the administration, the interns’ right of learning, the supervisors’ right and freedom of teaching and direction within their authority, and the goal of medical training, would have been damaged. The judiciary should not go beyond is duties and restrict the ways of medical teaching.