寵物醫療糾紛之法律關係及其程序法上相關問題之研究

Abstract

近年因國人飼養寵物數量日漸增加，保護動物觀念之提升，寵物已成現代人最親密的家庭陪伴之一，然寵物醫療糾紛訴訟近年亦有增加之趨勢，且開始受到社會所重視。寵物醫療糾紛中飼主對獸醫師常見的請求權基礎主要有：債務不履行之不完全給付、侵權行為責任與消費者保護法第7條。基於考量到平等原則及避免獸醫師進行防禦性醫療而影響動物福利，未來實務或可將具有如醫師醫療行為特質之寵物醫療行為，類推醫療法第82條第2項而排除於消保法第7條無過失責任之適用。目前法院於判斷獸醫醫療過失之存否，除善良管理人的注意標準外，亦有類推適用醫師醫療過失之注意判斷標準，包括「醫療常規」與「醫療水準」等，本文建議未來法院亦可綜合專家鑑定、獸醫師專長、動物生理狀況、飼主可負擔之財力，准許獸醫師依其專業經驗選擇治療方式，容許醫療裁量空間存在而不僵化於制式的醫療常規標準。近來社會關注之寵物醫療糾紛可否請求慰撫金之議題上，目前實務仍採否定見解為主，惟學說上開始有提出肯定見解者，如「情節重大說」、「親密飼養關係說」、「法官造法說」等，本文認為人格權隨時代演進有其變動之內涵，未來實務在寵物醫療糾紛個案中，或可在以「犬、貓」為限之範圍內，考量寵物與飼主間之親密關係與情感連結，是否足以獨立評價為「飼主之其他人格法益」，或考慮「情節重大」之要件而審酌給予飼主適當精神慰撫金。目前法院在寵物醫療糾紛之舉證責任分配上，主要依據我國民事訴訟法第277條前段，亦即飼主須對所受之醫療損害、該醫療行為與損害間之因果關係、獸醫之故意或過失，負擔舉證責任。在舉證責任減輕之適用上，本文認為未來法院或可於個案中運用表見證明、非負舉證責任一造說明義務、舉證責任轉換等方式以衡平兩造之舉證責任。本文藉由提出寵物醫療糾紛訴訟中較重要之實體法與程序法問題予以討論，並提出若干建議以期法院未來能在寵物醫療糾紛中，於兼顧飼主與獸醫師之權益下，以更公平合理之裁判回應飼主與獸醫師對法律之期待。

In recent years, due to the increasing number of pets kept by people in our society and the improvement of the concept of animal protection, pets have become one of the most intimate family companions of modern people. However, pet medical dispute litigation has also increased in recent years and has begun to receive attention from the society. In pet medical disputes, the common bases for pet owners` claims to veterinarians are: incomplete payment for non-fulfillment of debts, tort liability and Article 7 of the Consumer Protection Act. Based on the consideration of the principle of equality and the prevention of defensive medical treatment by veterinarians from affecting animal welfare, future practice may exclude pet medical behaviors that have the characteristics of doctors’ medical behaviors by analogy with Article 82, Item 2 of the Medical Law and exclude them from Article 7 of the Consumer Protection Act . At present, the court judges the existence of veterinarian medical negligence. In addition to the attention standard of good administrators, there are also analogy to apply the doctors` attention judgment standards of medical negligence, including "medical practice" and "medical standard". This article suggests that the future courts can also be integrated Expert appraisal, expertise of veterinarians, physiological conditions of animals, and the financial resources that the owners can afford, allow veterinarians to choose treatment methods based on their professional experience, and allow for the existence of medical discretion without rigidity to standard medical routine standards. Recently, on the issue of whether to request consolation payment, for pet medical disputes, the court still adopts negative opinions. However, there are some positive opinions in theories, such as "the story of serious circumstances", "the theory of close breeding relationship", " Judge-made law" etc., this article believes that personality rights have the connotation of changes over time. Future practice may be in pet medical dispute cases, or within the scope of "dogs and cats", considering the relationship between pets and owners. Whether the intimate relationship and the emotional connection are sufficient to be independently evaluated as "the owner`s other personality and legal benefits", or considering the "significant circumstances", the owner should be given appropriate recovery of non-pecuniary loss. At present, the court`s allocation of the burden of proof for pet medical disputes is mainly based on the first paragraph of Article 277 of the Civil Procedure Law, that is, the owner must pay attention to bear the burden of proof including the medical damage suffered, the causal relationship between the medical act and the damage, and the intention or negligence of the veterinarians. Regarding the application of the reduction of burden of proof, this article believes that in the future, courts may use prima facie evidence, the duty of explanation of non-bearing burden of proof, shift of burden of proof, etc. to balance the burden of proof between owners and veterinarians. This article discusses important substantive law and procedural law issues in pet medical dispute litigations and puts forward some suggestions in the hope that the court will be able to balance the rights and interests of owners and veterinarians in pet medical disputes in the future to be more fair and reasonable to responded to the expectations of owners and veterinarians for the law.