行政專業判斷的民主正當性問題──以全民健保醫療準則及醫療費用支付標準為中心

• Main Authors: Dung, Shr-Shi, 董士熙
• Other Authors: Lee, Chien-Liang
• Format: Others
• Language: zh-TW
• Published: 2013
• Online Access: http://ndltd.ncl.edu.tw/handle/84904758777410389593

碩士 === 東吳大學 === 法律學系 === 101 === ABSTRACT The payment standard of National Health Insurance called “Medical Payment Standard” before. It can be the norm which clarified the medical service of provider’s responsibility and the price list of every medical service that government’s obligation in the NHI contract. After the Constitutional Interpretation No. 524, the legislators amended the payment standard of the National Health Insurance Act, renamed it to “Medicare Items and Payment Standard”. Drawing on Niklas Luhmann’s theory, we found that medical system is based on Guidelines to create a closed system which operated by a binary code. To adopt a binary code makes system can isolate from environment and makes autopoiesis become feasible. Communication within the medical system can be binary state as effective/ineffective. And Guidelines are the Program to the medical system. Because law can’t properly regulate medical system, lawmakers adopt an especial normative mode in this field. This especial mode is just set the purpose in the norms. This Purpose-oriented Programmes causes criticisms that worries about the administration become an unregulated power and causes a crisis of democratic legitimacy. According to Jürgen Habermas’s observation, under the concept of “social ideal”, paradigms of law intends to qualify the actual requirement of Fundamental Rights, but it tends to become a tragedy. Because administrative decisions are depend on the few people’s will, this causes social-welfare conception transform into paternalistic governance. And all of this, also happen in the medical system. In this thesis, we will introduce autonomy and the meaning of dual democratic legitimacy model. We will explain how to operate dual democratic legitimacy model and why it’s properly to adopt autonomy in NHI medical system. And then, we will more understanding for the Organization--the most important progress of humanity’s collective life. KEY WORDS National Health Insurance System, Democratic Legitimacy, Medical Payment Standard, Guidelines, Autonomy, Legitimacy