藥事法與中藥販賣業：一項歷史學的考察

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Title:	藥事法與中藥販賣業：一項歷史學的考察
Authors:	劉亮亨;Liu, Liang-Heng
Contributors:	歷史研究所在職專班
Keywords:	中藥販賣業;中藥商賄賂案;藥事法第103條
Date:	2023-06-27
Issue Date:	2024-09-19 17:23:07 (UTC+8)
Publisher:	國立中央大學
Abstract:	「中藥店」是為中國最古老的商業行業之一，進入二十一世紀之際，其商業存在方式該如何融入現代需求，考驗著當代政府醫療政策之執行力。　　台灣經過日本殖民五十年的統治，引入西方醫學做為統治的手段；台灣總督府刻意不設立「藥學」教育，打壓中醫不打壓中藥，「中藥販賣業」成為非常蓬勃又混亂的狀態。光復初期，面對戰後衛生設備損毀，急性傳染病又起，加上剛接收的國民政府對於衛生行政的不熟悉，人力不足，又須要慢慢地融入日治時期遺留下來的體制，法制能力不足，對於能提供民間自我醫療的中藥販賣業多採放任。國民政府在政權逐步安定，衛生法制較為進展後，於1970年設立了「藥物藥商管理法」，將混亂的「藥商」專業採統一管理方式，期能維護國民健康。　　「中藥商」的販賣標的性質特殊，既屬民生常備物資，也具有醫療特性。在聲稱「家學淵源」的私家傳授下，要確認商家之「專業」素質不易。接收台灣後早期，衛生署迫於專業人員不足且有社會需求情形下，讓「中藥店」業者予以「熟諳中藥藥性」人員資格管理，給予營業許可。但其於1950年制定之「藥商管理規則」，即規定藥物之販賣，須專業人員管理。　　1993年的「藥物藥商管理法」改為「藥事法」，在法條中對先前登錄營業之「中藥商」予以「列冊管理」，刪除了中藥商之「中藥調劑權」。1996年開始，中藥商公會全聯會為爭取「中藥調劑權」找上了立法院多位委員幫忙推動修法。1998年6月修訂藥事法第103條，除了讓「中藥商」再度「列冊管理」，並未取得「中藥調劑權」。在匆促的修法過程中，放上了語意不清、前後不搭的三款條文文字，導致後續紛爭不斷。　　特別偵查組於2008年偵結「中藥商賄賂案」，掌握了中藥商公會全聯會利益輸送的帳冊，起訴了八位立法委員。訴訟延宕多年，來回於行政法院之間，起訴的立法委員由八位減至一位，最後於更五審判刑三年十個月。期間，民眾只是以「政治鬥爭」看待此案，並沒有意識到此案對於台灣的「中藥販賣業」管理制度的改變。多年來，改制為衛生福利部（原衛生署）只有消極不作為，沒做任何補救措施。　　2017年11月，中藥商公會到衛生福利部前集結抗爭，強調政府25年來未依被修正之藥事法第103條給予考試機會，讓新生代接手經營中藥販賣業務，因而威脅到中藥商的生存權。時至今日，坊間看到的期刊論文之論據，皆是以現行「藥事法」第103條出發，認為政府未善盡照顧「中藥商」生計，以延續中華固有傳統文化精髓之責。卻完全忽略了「藥事法」被粗暴修訂之過程，更沒追究過當時衛生署的立場，以及台灣特有的醫療發展史。　　此篇論文想呈現歷史原有的軌跡，因為利益團體在歷史發展中添加了賄賂（利益輸送）這個變數，導致不可解之謎樣問題。歷史只是過程，惡法亦法，現代政府衛生主管單位應忠於社會公民賦能的請託，對於國家長程之發展與國民健康之照護，做出符合時代需求之規劃與作為。然，過去衛生署曾堅持不能接受的改變，在時代已經長程進步的現代，規劃上似乎更傾向利益團體。政府做為擘劃社會大眾健康照護的推手，對於政策之提出，似應更為謹慎。　　本文依據立法院公報、報紙新聞等史料收集，探討「藥事法」與「中藥販賣業」，其轉折點與關鍵變化。期以本文發揮歷史呈現之功效，引導閱覽諸公得以窺知較為全面之歷史過程，進而做出更符社會事實之評價。 ;"Chinese medicine store" is one of the oldest commercial industries in China. When entering the 21st century, how to integrate its commercial existence into modern needs. It is a test of the execution ability of the contemporary government’s medical policies 　　After fifty years of Japanese colonial rule in Taiwan, the Japanese introduced Western medicine to Taiwan as a means of domination; Taiwan′s Governor-General deliberately did not set up "pharmaceutical" education, suppressed Chinese medicine and did not suppress Chinese medicine, and the "tradition of Chinese medicine" became very prosperous and chaotic. In the early days of recovery, in the face of the destruction of health facilities after the war and the resurgence of acute infectious diseases, coupled with the fact that the national government that had just taken over was not familiar with health administration and lacked manpower, it needed to slowly integrate into the system left over from the Japanese occupation period, and its legal capacity was insufficient. , The traditional Chinese medicine sales industry that can provide private self-medication is more laissez-faire. After the national government gradually stabilized the regime and made progress in the health legal system, it established the "Drug and Drug Merchant Management Law" in 1970, which unified the management of the chaotic "pharmaceutical merchants", hoping to maintain the health of the people. 　　The sales targets of "Chinese medicine dealers" are of a special nature, which are not only common supplies for people′s livelihood, but also have medical properties. It is not easy to confirm the "professional" quality of the business under the private tutor who claims "family origin". In the early days after taking over Taiwan, the Department of Health was forced by the shortage of professionals and social needs to allow the "Chinese medicine store" operators to manage the qualifications of personnel "familiar with the properties of Chinese medicine" and grant business permits. However, the "Pharmaceutical Management Rules" enacted in 1950 stipulated that the sale of drugs must be managed by professionals. 　　In 1993, the "Pharmaceutical and Pharmaceutical Traders Management Law" was changed to the "Pharmaceutical Affairs Law". In the law, the "traditional Chinese medicine merchants" that had previously registered for business were "listed and managed", and the "traditional Chinese medicine dispensing right" of Chinese medicine merchants was deleted. Beginning in 1996, the National Federation of Chinese Medicine Merchants Associations sought the help of many members of the Legislative Yuan to promote the amendment of the law in order to fight for the "right to dispensing Chinese medicines." Article 103 of the Pharmaceutical Affairs Law was amended in June 1998. Apart from allowing "traditional Chinese medicine dealers" to be "registered and managed" again, it did not obtain the "right to dispense traditional Chinese medicine." In the hasty process of amending the law, three clauses with unclear meaning and inconsistency were put in, which led to continuous disputes in the follow-up. 　　In 2008, the special investigation team concluded the "Chinese Medicine Traders Bribery Case", grasped the account books of the Chinese Medicine Traders Association, and prosecuted eight legislators. The lawsuit was delayed for many years, going back and forth between the administrative courts, the number of legislators prosecuting was reduced from eight to one, and finally sentenced to three years in the fifth trial. During this period, the public only looked at the case as a "political struggle" and did not realize that the case had changed the management system of Taiwan′s "trafficking of traditional Chinese medicine". Over the years, the reorganization into the Ministry of Health and Welfare (formerly the Department of Health) has only passive inaction and no remedial measures. 　　In November 2017, the Chinese Medicine Merchants Association gathered in front of the Ministry of Health and Welfare to protest, emphasizing that the government has not given the opportunity to take the exam in accordance with Article 103 of the amended Pharmaceutical Affairs Law for 25 years, allowing the new generation to take over the business of selling Chinese medicine, thus threatening the Chinese medicine business. right to life. To this day, the arguments of journal papers seen in the market are all based on Article 103 of the current "Pharmaceutical Affairs Law", arguing that the government has failed to take good care of the livelihood of "Chinese medicine merchants" in order to continue the essence of traditional Chinese culture. However, it completely ignored the process of the rough revision of the "Pharmaceutical Affairs Law", let alone the position of the Department of Health at that time, as well as Taiwan′s unique history of medical development. 　　This paper wants to present the original trajectory of history, because interest groups have added the variable of bribery (benefit transmission) to historical development, resulting in unsolvable and mysterious problems. History is only a process, and evil laws are also laws. Modern government health authorities should be loyal to the request of social citizen empowerment, and make plans and actions that meet the needs of the times for the long-term development of the country and the care of national health. However, in the past, the Department of Health insisted on unacceptable changes. In the modern era that has undergone long-term progress, planning seems to be more inclined to interest groups. As the driving force behind planning public health care, the government seems to be more cautious in proposing policies. A 180-degree reversal of the regulation of the management of the Chinese medicine sales industry is not the same as it was yesterday. 　　Based on the collection of historical materials such as the Legislative Yuan Gazette and newspaper news, this article discusses the turning points and key changes of the "Pharmaceutical Affairs Law" and "traditional Chinese medicine trade". It is hoped that this article will play the role of historical presentation, guide readers to get a glimpse of a more comprehensive historical process, and then make an evaluation that is more in line with social facts.
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