论医务人员保密义务及其犯罪界限

On the Confidentiality Obligation of Medical Personnel and Its Criminal Limits

医务人员的保密义务可追溯至上千年前,在医疗事业趋向精细化的今天,尤其是组织性、分工性医疗形态的出现为该义务提出了新的挑战。医生保密义务背后的法益存在个人利益与社会利益的争论,但目前更多的学者认为二者兼有;在保密义务的主体问题上,应当将其进行扩大解释,不能仅限于医生这一范围内;保密义务并非是不可违反的,在特定情况下可以为其找到正当化根据;在刑法规制上,不能只注重定量而忽视定性,应当对医疗信息进行分类保护,采取不同的入罪定量要求。

The confidentiality obligation of medical personnel can be traced back thousands of years. In to-day’s increasingly refined medical industry, especially with the emergence of organizational and division of labor medical forms, this obligation has posed new challenges. There is a debate be-tween personal and social interests regarding the legal benefits behind the obligation of confidentiality for doctors, but currently more scholars believe that both are present;in terms of the subject matter of confidentiality obligations, it should be expanded and not limited to the scope of doctors;the obligation of confidentiality is not inviolable and can be justified in specific circumstances;in terms of criminal law regulation, we cannot only focus on quantitative analysis while neglecting qualitative analysis. We should classify and protect medical information and adopt different quantitative requirements for criminalization.