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大法官解釋表頭

(釋字第 545 號 )      友善列印PRINT  
Interpretation
J.Y.
Interpretation
NO.545 
Date 2002/5/17
Issue Is the discipline of a physician by suspension or revocation of his/her practicing license for illegal or improper conduct under Article 25 of the Physician Act consistent with the spirit of Article 23 of the Constitution?
Holding   The Physician Act promulgated on December 26, 1986, provides, in Article 25, that: "Physicians who engage in illegal or improper conduct in the course of their practice may be disciplined by a one-month to one-year suspension from practice or revocation of practicing license." "Illegal conduct in the course of their practice" refers to conduct in the performance of medical services which may be objectively interpreted, in accordance with professional knowledge, as prohibited by the law. The foregoing is limited to conduct, related to the medical practice, which violates the law, and does not cover all illegal conduct engaged in by physicians in general; hence, its scope is ascertainable. "Improper conduct in the course of their practice" means conduct in the performance of physicians' professional services, which, though not to the extent of being illegal, is contrary to the requirements of the doctrine and ethics of the medical profession. Therefore, such conduct is improper and should be prevented. The law cannot provide for detailed descriptions of all of the abovementioned types of illegal or improper conduct. They are thus governed by abstract legal concepts, and their meanings to be applied in a specific case are not such that are unascertainable by properly established institutions utilizing their specialized knowledge and the social norm. Such meanings may also be confirmed by judicial reviews and are not in conflict with the principle of clarity and definiteness of law (Rechtsbestimmtheitprinzip) or the constitutional principle of the protection of the people's rights. The first mentioned Article authorizes the competent authorities to discipline physicians, who deviate from conduct required of their profession, by inflicting administrative penalties within the bounds of the abovementioned Act, taking into consideration the effects of such illegal or improper conduct on medical safety, public health and national health insurance beneficiaries, as well as detriments to the financial structure. The decision as to discipline shall serve the purposes of upholding physicians' professional ethics, preserving the social order and improving the public benefit, and shall not be incompatible with Article 23 of the Constitution.
Reasoning   Professionals who breach duties imposed by their profession are thus disciplined by law. Insofar as the criteria for discipline are concerned, the legislators' decision to adopt abstract legal concepts or catchall provisions to govern such criteria is based on their contemplation of the complexities in attempting to regulate the facts of real-life situations and the appropriateness of applying a certain law to a specific case. If the meanings of the said concepts or provisions are not incomprehensible, and the persons regulated thereby can predict the actions or inactions that constitute breach of duty and induce discipline, and judicial reviews are available for reconfirmation, then they may not be said to contradict the clarity requirement of law (See J.Y. Interpretation No.432).

  The Physician Act promulgated on December 26, 1986, provides, in Article 25, that: "Physicians who engage in illegal or improper conduct in the course of their practice may be disciplined by a one-month to one-year suspension from practice or revocation of practicing license." "Illegal conduct in the course of their practice" refers to conduct in the performance of medical services and knowledge, which may be objectively interpreted, pursuant to professional knowledge, as prohibited by the law. The foregoing is limited to conduct, related to the medical practice, which violates the law, and does not cover all illegal conduct engaged in by physicians in general; hence, its scope is ascertainable. "Improper conduct in the course of their practice" means conduct in the performance of physicians' professional services, which, though not to the extent of being illegal, is contrary to the doctrine and ethics of the medical profession. Therefore, such conduct is improper and should be prevented. This is especially so when the issue of ethics is involved. The law cannot provide for detailed descriptions of all types of illegal or improper conduct. They are thus governed by abstract legal concepts, and their meanings to be applied in a case are not such that are unascertainable by properly established institutions utilizing their specialized knowledge and the social norm. Such meanings may be finalized and confirmed by judicial reviews and are not in conflict with the principle of clarity and definiteness of law (Rechtsbestimmtheitprinzip) or the constitutional principle of the protection of the people's rights. Article 25 of the Physician Act was amended and promulgated on January 16, 2002. The said Article lists illegal or improper conduct, in the ethics respect of physicians' course of practice, in four paragraphs, with the exception of Article 28-4 which authorizes the competent authorities to impose disciplinary measures of penalty charges, restrictions on the scope of or suspension from practice, or revocation of practicing license or doctor's certificate at their discretion. Article 25 also provides a catchall provision in Paragraph 5: "improper conduct in the course of physicians' practice which falls outside of the above four paragraphs and Article 28-4."

  The various disciplinary measures, contained in disciplinary rules authorized by law, are clearly stipulated in the amended Article 25-1. As to disciplinary proceedings, they are to be initiated and referred to the disciplinary commission by the Physicians' Association and the competent authorities. Because it is impracticable to describe in detail all the types of improper conduct, it becomes necessary for specialized groups or the competent authorities to determine whether to refer a case to the disciplinary commission.

  Physicians provide patients and insurance beneficiaries with medical, health, and other related services in respect of medicine and national health insurance coverage. Any illegal or improper conduct will jeopardize medical safety and public health. If, at the same time, physicians charge improper fees under health insurance for personal benefit, this will increase the financial burden of national health insurance, thus affecting the people's insurance burden and jeopardizing the development of the national health insurance system. Prior to the amendment of the first-mentioned Article of the Physician Act, physicians who deviate from the conduct required of their profession will be disciplined by "a one-month to one-year suspension from practice or revocation of practicing license" as imposed by the competent authorities according to the degree of severity of the illegal or improper conduct. The above is essential to the upholding of physicians' professional ethics, the advancement of public health, the betterment of the quality of medical services, the preservation of the social order and the improvement of public interests, and is not incompatible with Article 23 of the Constitution.

' Translated by Wei-Feng Huang of THY Taiwan International Law Offices.
 

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