Ignor A
Kanzlei Danckert, Deus & Meier, Berlin.
Z Arztl Fortbild Qualitatssich. 1998 Oct;92(8-9):586-92.
Until recently, physicians were confronted with a certain risk of prosecution typical of the medical profession such as personal injury or sometimes manslaughter. Now, physicians are compelled to face accusations apparently outside of this profession such as fraud, embezzlement, or cheating. When physicians get contact with the executive power (i.e. on the occasion of a search), it should be questioned whether one is seen as an accused or as witness. Both positions contain different rights and duties. The witness always has to testify. He can refuse to testify due to personal and professional reasons. Additionally, he may refuse to answer questions that would expose himself or a relative to the risk of charges. According to the German constitution, the witness may request the support of a lawyer. The main duty of the accused is to endure the proceedings against him. There is no option to appeal against the opening of criminal proceedings. The most important rights of the accused are the right to refuse the testimony and the right to be heard at court. The right of hearing includes the right to decide about the time and kind of a possible attendance during the proceedings. This right should be used in any case. Every unconsidered or uncertain statement may be of severe disadvantage. It is regularly indicated to ask a lawyer for legal support which is also the right of the accused. During testimony, the physician faces the problem whether he is allowed to reveal facts that are subject of medical discretion. He has the right to do so if he is unable to refute the accusation otherwise leading to legal sanctions or to a charge. The specific rights and options of an attorney include the scrutiny of the procedures of the executive power and the active participation to find the true facts of the case. It is the attorney but not the accused who has the right to examine the records. Both have the right to influence the criminal proceedings by contribution of evidence.
直到最近，医生仍面临着医疗行业特有的某些被起诉风险，比如人身伤害，有时甚至是过失杀人。如今，医生却不得不面对明显超出该行业范畴的指控，诸如欺诈、挪用公款或欺骗行为。当医生与行政权力部门接触时（例如在搜查的情况下），就会产生一个问题，即自己是被视为被告还是证人。这两种身份包含不同的权利和义务。证人总是必须作证。他可以基于个人和职业原因拒绝作证。此外，他可能拒绝回答那些会使自己或亲属面临被指控风险的问题。根据德国宪法，证人可以请求律师的帮助。被告的主要义务是忍受针对他的诉讼程序。对于刑事诉讼的启动没有上诉的选择。被告最重要的权利是拒绝作证的权利以及在法庭上被听取陈述的权利。被听取陈述的权利包括决定在诉讼程序中可能出庭的时间和方式的权利。在任何情况下都应行使这项权利。每一个未经深思熟虑或不确定的陈述都可能带来严重的不利后果。通常建议寻求律师的法律帮助，这也是被告的权利。在作证过程中，医生面临一个问题，即他是否被允许披露属于医疗裁量权范围内的事实。如果他无法以其他方式反驳导致法律制裁或指控的指控，他有权这样做。律师的具体权利和选择包括对行政权力部门程序的审查以及积极参与以查明案件的真实情况。有权查阅记录的是律师而非被告。双方都有权通过提供证据来影响刑事诉讼程序。
