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  • Interpretation
  • No.502
  • Date
  • 2000/04/07
  • Issue
    • Where the Civil Code mandates that the adopter should be more than twenty years older than the adoptee, is it constitutional to have the said provision strictly enforced in case both spouses co-adopt or one spouse adopts the other spouse*s child/children?
  • Holding
    •        Article 1073 of the Civil Code stipulates that the adopter should be twenty or more years older than the adoptee, and Article 1079-1 stipulates that adoption in violation of Article 1073 is null and void. The provisions are not only in harmony with Chinese family ethics but also essential for the maintenance of the social order and the improvement of public interest. Hence, such laws are not in contravention with the intent of the Constitution to protect the people*s right to freedom. However, though the reasonableness of the age difference between the adopter and the adoptee is a matter of legislative discretion, in order to uphold family harmony and to protect the adoptee*s right, the above stipulations should be amended to offer flexibility in the arrangement of the practical needs of social subsistence, especially in cases where two spouses co-adopt or one spouse adopts the other*s child\children. Accordingly, the relevant authorities shall examine and amend such laws.
  • Reasoning
    •        Article 1073 of the Civil Code requires that the adopter should be more than twenty years older than the adoptee and Article 1079-1 stipulates that any adoption that is not in accord with Article 1073 is null and void. The law rendering restrictions on the age difference between the adopter and the adoptee respects the Chinese tradition on generational ethics, and thus corresponds with family moral values. They are considered essential for the maintenance of the social order and the improvement of public interest. Hence, such laws are not in conflict with the intent of the Constitution to protect the people*s right to freedom. Although the reasonableness of the age difference between the adopter and the adoptee is a matter of legislative discretion, it must also be considered that the main aspiration of the existing legal adoption system is to protect the adoptee*s right, and that parent-child relationships are becoming more and more sophisticated in contemporary, pluralistic society. In cases where two spouses co-adopt or one spouse adopts the other*s child\children in violation of Article 1073 and thus invalidate(s) the adoption, the law may actually contravene not only the adoptee*s interests but also the family*s well-being. In order to uphold family harmony and to protect the adoptee*s rights, the above provisions: “the adopter should be more than twenty years older than the adoptee, a violation of which invalidates the adoption” should be amended to offer flexibility and meet the practical needs of society, especially in cases where two spouses co-adopt or one spouse adopts the other*s child\ children. Therewith, the relevant authorities shall examine and amend such laws.  
      
    • *Translated by Professor Dr. Amy H.L. SHEE.
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