The Current Statute and Policy Direction of Taiwan Medical Criminal Prosecution
Date Issued
2013
Date
2013
Author(s)
Hong, Kuo-Hua
Abstract
It has been a debate both in the medical and legal community whether medical disputes should be charged under criminal law. Generally, doctors contend that criminal prosecution intimidates medical practices and hurts the whole medical environment. However, legal literatures in Taiwan focuses primarily on qualitative research. The lack of a comprehensive quantitative research results in unpersuasive arguments on whether criminal charge is the problem to the medical community, and leads to the failure to reach consensus on policy. Hence this Paper aims to, through both quantitative and qualitative approaches, explore the future of criminal policy on medical disputes.
Before proceeding to discuss medical disputes, in Chapter Two, this Paper starts from relevant legal literatures and narrows down the definition of “medical disputes” as the disputes of whether “the patients’ injury and death resulting from the medical treatments should be blamed on medical personnel and institutions involved,” and confines the subjects of criminal charge in medical disputes to doctors who had commanded the disputed medical treatments.
Next, in Chapter Three, this Paper reviews the current state of criminal substantial and procedural law in Taiwan. By comparing medical treatments performed by doctors with professional techniques in other walks of life, this Paper discusses whether it is necessary to offer special treatment for medical disputes, and evaluates all the arguments offered as legislative opinions for medical criminal policy up to date. Here, this Paper argues that, in theory, the purported particularity of medical treatment is groundless, and that as a result the need to adjust criminal policy for this sake cannot be justified.
Since many literatures point to the evidence in comparative law and empirical data arguing that in Taiwan criminal charge is more likely to be relied upon to prosecute doctors for negligent responsibility in professions, this Paper, in Chapter Four and Five, examines such arguments from the perspectives of comparative law and empirical analysis. In comparative law, this Paper finds that criminal laws in other jurisdictions stipulate no special treatment for doctors; even in China, where the “crime of medical negligence” is written into law, criminal law of China in fact punishes comprehensive professions including transportation, railway, productive facilities, educational institutions and personnel. In other words, the medical community receives no special treatment here.
In Chapter Five, this Paper conducts empirical analysis and demonstrate that, in Taiwan, the past thirty years did not see apparent increase on the rate of doctors charged under criminal law. Both the yearbooks of the Department of Justice and the Judicial Yuan do not show any evidence that doctors are more likely to be charged under criminal law or receive longer sentence for performing medical treatment. Instead, these data shows that, compared with other professions, doctors are even under less chance for criminal charge. Compared with Japan and Germany, both sharing similar legal system with Taiwan, after background modification on population, number of doctors, and number of charged cases, though the number of charged cases of doctors performing medical treatment in Taiwan is higher than that of Japan, it is lower than Germany. Besides, on prosecution rate and conviction rate, Taiwan is higher than Germany but lower than Japan. These facts still cannot support the argument that criminal policy in Taiwan is more harsh to doctors than in any other country of similar legal system.
Therefore, in conclusion, this Paper points out that, from the perspectives of the particularity of doctors and medical treatments, comparative law, and all kinds of empirical analysis, no ground of legitimacy exists for special treatment in criminal policy concerning medical disputes. To adjust criminal policy cannot save the worsening medical environment; much worse, it obscures the true culprit: medical policy. As for the relevance between medical policy and the worsening medical environment, due to limited capability and time, this Paper does not offer a more detailed discussion. However, this Paper points out medical labor policy and national health insurance policy as the key, and suggests that reviewing these policy is the right way to improve the medical environment in Taiwan.
Subjects
醫療糾紛
刑事政策
業務過失
重大過失
告訴乃論
刑事附帶民事程序
刑事追訴
SDGs
Type
thesis
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