Go to Content Area :::

Constitutional Court R.O.C. (Taiwan) Logo

Home Sitemap 中文版
   

Decisions

Home > Decisions > Docket Search > Before 2022
:::
:::
  • Interpretation
  • No.410
  • Date
  • 1996/07/19
  • Issue
    • Does Article 1 of the Enforcement Act of the Part of Family of the Civil Code which prohibits the application of the Civil Code ex post facto constitute an infringement on the right of equality guaranteed by Article 7 of the Constitution to the married women?
  • Holding
    •        Article 1 of the Enforcement Act of the Part of Family of the Civil Code (hereinafter the “Enforcement Act”) states that, except as otherwise provided by the present Enforcement Act, the provision of the Civil Code (hereinafter the Code) applying to succession does not apply to succession completed before the Enforcement Act came into force; unless otherwise provided for by the present Enforcement Act, the revised provisions do not apply to any succession opened before the revision. Article 1 of the Enforcement Act is not in violation of the Constitution because the purpose of Article 1 of the Constitution is to recognize the situation prior to the enactment or amendment of the Enforcement Act and to maintain legitimacy stability. Furthermore, the Enforcement Act also enacted differential regulations to be consistent with coexisting legal order, which should be changed or eliminated.     In the matter of regulations governing the community property, Article 1017, Paragraph 1, of the Code, promulgated on December 26, 1930, states that the part of the community property which belonged to the wife at the time of marriage as well as what she acquired during the continuance of the marriage constitute her contributed property and it remains in her ownership. Article 1017, Paragraph 2, states that the part of the community property initially belonging to the husband and that cannot be proved to be property owned by the wife should be presumed as the property of the husband. Article 1017, Paragraph 3, states that the ownership of the interest coming from the wife*s property belongs to the husband. Therefore, the Supreme Court*s Precedent T.K.T. No. 161 (Sup. Ct., 1966) held that the property obtained by the wife during the continuance of the marriage which cannot be proved separate property or contributed property belongs to the husband under Articles 1016 and 1017, Paragraph 2, of the Code.     Under the authority of Article 7 of the Constitution emphasizing gender equity, the Code was amended on June 3, 1985. The previous precedent, which follows the amended Code, is no longer to be implemented. Nevertheless, because the Enforcement Act did not set forth different regulations of the modification of the community property in Article 1017 of the Code, the community property, prior to the amendment of the Code in 1984 which still applied to the original regulations, belonged to the husband. A regulation that does not comply with the Constitution’s ensuring of gender equality is obviously unconstitutional. In order to agree with the principle of gender equity, the portion of the Enforcement Act regarding community property that does not belong to either the husband or wife should be reviewed by the relevant authorities.   Article 16, Subparagraph 11, of the Estate and Gift Taxes Act mentions that the total amount of the inherited property excludes the surviving spouse*s and heir’s separate property or contributed property, which is officially registered or has a deed. The term, “survivor spouse,” which appears in the Estate and Gift Taxes Act, is not limited to a husband or wife. This provision does not breach Article 7 of the Constitution emphasizing the principle of gender equity.
  • Reasoning
    •        Article 1 of the Enforcement Act stipulates that, except as otherwise provided by the present Enforcement Act, the provision of the Civil Code applying to succession does not apply to succession completed before the Enforcement Act came into force; unless otherwise provided for by the present Enforcement Act, the revised provisions do not apply to any succession opened before the revision. Article 1 of the Enforcement Act is not in violation of the Constitution because the purpose of Article 1 of the Enforcement Act is to recognize the situation prior to the enactment or amendment of the Enforcement Act and to maintain legitimacy stability. Furthermore, the Enforcement Act also enacted different regulations to be consistent with the coexisting legal order, which should be changed or eliminated.    In the matter of the regulations governing the community property, Article 1017, Paragraph 1, of the Code, promulgated on December 26, 1930, states that the part of the community property which belonged to the wife at the time of the marriage as well as what she acquired during the continuance of the marriage constitutes her contributed property and remains in her ownership. Article 1017, Paragraph 2, states that the part of the community property initially belonging to the husband and that cannot be proved to be the property owned by wife should be presumed as the property of the husband. Article 1017, Paragraph 3, states that the ownership of the interest coming from the wife*s property belongs to the husband. Therefore, the Supreme Court*s Precedent T.K.T. No. 161 (Sup. Ct., 1966) held that the property obtained by the wife during the continuance of the marriage which can not be proved separate property or contributed property belongs to the husband under Articles 1016 and 1017, Paragraph 2, of the Code.   Under the authority of Article 7 of the Constitution emphasizing gender equity, the Code was amended on June 3, 1985. The amendment to Article 1017, Paragraph 1, pronounces that the part of the community property which belongs to the husband or the wife at the time of marriage as well as what he or she acquires during the continuance of the marriage constitute his or her contributed property and remains in his or her ownership. The amendment to Article 1017, Paragraph 2, asserts that the part of the community property which cannot be proved to be property owned by either the husband or the wife shall be presumed as property contributed by the husband and the wife jointly. Article 1017, Paragraph 3, enacted in 1930 has been cancelled. Regarding the management of the community property, the amendment to Article 1018 rules that the husband shall manage that marital property except where it has been agreed that the wife shall manage it, and the cost of management shall be borne by the party who is entitled to manage. In order to be consistent with the Constitution, where the community property is managed by the wife, provisions of Articles 1019 through 1030 on the rights and duties of the husband shall be applicable to the wife and the rights and duties of the wife shall be applicable to the husband. The previous precedent which follows the amended Code should no longer be implemented.  Nevertheless, because Article 1 of the Enforcement Act stipulates the above, and unless otherwise provided for by the present the Enforcement Act rules, the revised provisions are not applicable to the community property accumulated before the revision. The Enforcement Act did not modify the community property portion of Article 1017 of the Code. As a result, the community property portion was in place prior to the amendment of the Code in 1985 and still applies to the regulations amended in 1930. It is obviously unconstitutional to maintain that the property which does not belong solely to the husband or solely to the wife belongs to the husband as well as interest gathered from the wife*s separate property. The management right to the martial union property is unconstitutional because this regulation does not comply with the Constitution*s guarantee of gender equity. In order to agree with the principle of gender equity, the portion of the Enforcement Act regarding the community property which does not belong to either the husband or wife should be reviewed by the relevant authorities. Then, the authorities should amend the current provision because the right of management and ownership of community property should be protected under the existing legal order.  Article 16, Subparagraph 11, of the Estate and Gift Taxes Act mentions that the total amount of the inherited property excludes the surviving spouse*s and heir’s separate property or contributed property, which is officially registered or has a deed. The term “survivor spouse” that appears in the Estate and Gift Taxes Act is not limited to the husband or wife. This provision does not breach Article 7 of the Constitution emphasizing the principle of gender equity. It is hard to allege that the Estate and Gift Taxes Act breaches Article 7 of the Constitution emphasizing the principle of gender equity, because it creates different amounts of inheritance calculated under Article 1 of the Enforcement Act.
      
    • *Translated by Lawrence L. C. Lee.
Back Top