從實證分析看加工自殺罪之可罰性─兼論病人自主權利法之適用

病人自主權利法即將施行，屆時病人將可透過預立醫療決定由醫師終止、撤除或不施行維生醫療決定而尊嚴地逝去，但我國刑法訂有加工自殺罪，強調生命法益不可拋棄。而生命權之保障是否包含個人選擇尊嚴死亡之權利，司法實務究竟如何調和「生命的自主決定」與「生命的絕對保護」這二種憲法層次之價值衝突，以及如何解釋適用加工自殺罪，同時在量刑層面如何考量個人生命自主決定，則少有研究。本文嘗試以加工自殺判決實證研究為基礎，尋找有無醫師因安寧緩和醫療條例而衍生加工自殺之個案，並對於判決中加工自殺可罰性基礎、構成要件及刑法加重、減輕事由進行彙整分析，提出較具量刑審酌重要性及影響力之要素，藉此探索我國刑事司法體系對於加工自殺罪成罪之裁量標準，以期能精確理解司法實務對於加工自殺罪之適用，再從此標準檢視病人自主權利法第14條排除醫師刑事責任規定，就刑事法層面而言，應如何解釋、適用?有否成立加工自殺之餘地?並以比較法之方式，借鏡美國奧勒岡州、加州及日本之法制。最後，根據以上結論及相關專業人士訪談，提出病人自主權利法第14條刑事免責條款之適用方式，以及兼論我國臨終法制可能面臨之挑戰，提供未來我國臨終法制改革的基礎。

關鍵字

病人自主權利法；安寧緩和醫療條例；刑法第275條；尊嚴死；自主權；臨終法制

並列摘要

The “Patient Autonomy Act” is soon to be enforced. By then, a patient can choose a dignified death through making an advance directive based on which a physician decides to terminate, withdraw or withhold life-sustaining medical treatment. Nonetheless, assisted suicide crime (Article 275) is written in the Criminal Code of the Republic of China, underlining that the legal interest of life cannot be abandoned. However there have been few studies on whether the protection of the right to life includes the right of an individual to choose a dignified death, the ways judicial practice reconciles, at a constitutional level, the conflict of values between “self-determination for one’s life” and “absolute protection of life,” as well as how to explain the application of Article 275 of the Criminal Code and yet consider the self-determination for one’s life at the sentencing level. Based on the empirical research of the verdicts on assisted suicide crime, this paper attempts to find out if there was any case of assisted suicide crime by physicians as a result of the Hospice Palliative Care Regulation. On the basis of the collation and analysis of the foundation and constituting elements of the punishability of assisted suicide crime in the verdicts, as well as the reasons for increased or reduced punishments, the factors with greater importance and influence for sentencing review are put forward so as to explore Taiwan’s criminal justice system’s discretion standard for convicting people of assisted suicide in the hope of accurately understanding the applicability of Article 275 in judicial practice. Based on this standard, Article 14 of the Patient Autonomy Act that exempts physicians from criminal responsibility is examined, focusing on how it should be explained and applied at the criminal code level; and whether there is any ground for convicting people of assisted suicide. Moreover, by means of comparison, lessons are drawn from the legal systems of Oregon and California of the USA and Japan. Finally, according to the above conclusion and interviews with relevant professionals, this paper puts forward the ways of applying Article 14 of the Patient Autonomy Act, the criminal responsibility exemption clause, and discusses the possible challenges confronting Taiwan’s hospice care legal system so as to provide a foundation for the future reform of such system in Taiwan.