A child’s right to identify his/her blood filiations and to ascertain his/her paternity is concerned with the right to personality and shall be protected by the Constitution.  Article 1063 of the Civil Code stipulates, “Where the conception of the wife is during the continuance of a marital relationship, the child so born is presumed to be legitimate.  In regard to the presumption of legitimacy provided in the preceding paragraph, either the husband or the wife may bring an action for disavowal if he or she can prove that the conception of the wife is not from the husband; but such disavowal shall be effected within one year after the knowledge of the child’s birth.”  Such law is intended to balance the maintenance of a stable status order and the protection of a child*s interests.  However, such right may only be exercised by either of the spouses, while the child is not entitled to bring an action for disavowal.  Nor does the provision consider the reasonableness of extinctive prescription for a child’s petition.  Therefore, the law has inappropriately restricted the right of a child to litigation, and is thus insufficient in defending the right to personality.  Within this ambit, such law is inconsistent with the constitutional principles of protecting the right to personality and the right to litigation.  The relevant holdings of the Supreme Court Precedents Year 23-No.3473 (1934) and Year 75-No.2071 (1986) should no longer be applied.  In response, the concerned legislative authorities shall endeavor to amend relevant laws regarding the legal subject and the extinctive prescription of disavowal of paternity in line with the abovementioned constitutional principles.  

       According to J.Y. Interpretations Nos.177 and 178, if a statute or a precedent invoked by a finalized judgment is declared unconstitutional by this Yuan as a result of the people’s application for a judicial interpretation, the disadvantaged party of the judgment may, basing the petition on that judicial interpretation, apply for relief according to the law of litigation procedure.  If the party of this case is not entitled to a retrial, he/she shall be allowed, within a year after this Interpretation is announced, to bring an action for disavowal against the legally presumed father.  In such case, relevant provisions on the disavowal of paternity in the Code of Civil Procedure shall apply mutatis mutandis.  When the action is initiated by a statutory agent, it should be brought for the child’s best interests.  

       The law which disqualifies a natural father from bringing an action for disavowal re his child presumed to be born in wedlock is intended to prevent damage to marriage stability, family harmony and the right of a child to education and nurture, and is thus not contrary to the Constitution.  As to whether the law is to be amended to loosen the restrictions for such actions to a certain extent, this is a matter of legislative discretion.

       A child’s right to identify his/her blood filiations was declared by Article 7, Section 1, of the UN Convention on the Rights of the Child, validated on September 2, 1990.  The right to establish paternity is concerned with a child’s right to personality and shall be protected under Article 22 of the Constitution.  Article 1063 of the Civil Code stipulates, “Where the conception of the wife is during the continuance of a marital relationship, the child so born is presumed to be legitimate.  In regard to the presumption of legitimacy provided in the preceding paragraph, either the husband or the wife may bring an action for disavowal if he or she can prove that the conception of the wife is not from the husband; but such disavowal shall be effected within one year after the knowledge of the child’s birth.”  Such law is intended to balance the maintenance of a stable status order and the protection of a child*s interests.  However, the right to disavowal may only be exercised by either of the spouses, while the child is not entitled to it.  Such restriction may be justified on the basis of not interfering in the private sphere of marital relations by investigating the facts concerning the begetting of [or paternity of] an out-of-wedlock child, thus resulting in the disturbance of family harmony.  Nevertheless, the establishment of paternity relates directly to the child’s personality and interests, and when both spouses will not or can not bring an action for disavowal within the time limit and thus fail to ascertain the paternity of a child, the child’s right to personality will then be infringed.  In order to realise the constitutional rule, it shall be certified that the establishment of paternity is the natural right of a child.  It was stipulated in the former German Civil Code that a child could bring an action for disavowal at a supplementary position (when both parents had failed to do it).  The law has been amended according to the UN Convention and now allows a child to initiate a legal suit to deny presumed paternity（Articles 1600, 1600a, 1600b of the German Civil Code）.  There are also similar stipulations in Articles 256 and 256c of the Swiss Civil Code.  Therefore, the aforementioned provision of the Civil Code (ROC), which allows the husband or the wife to bring an action for disavowal while denying the child the same claim, has inappropriately restricted the right of a child to litigation, and is thus insufficient in the defense of the right to personality.  It is contrary to the best interests of the child that the Civil Code governing the parent-child relationship has been abided by（Articles 1055, 1055-1, 1055-2, 1089II, and 1094II）.  Within this ambit, such law is inconsistent with the constitutional principles of protecting the right to personality and the right to litigation. The relevant holdings of the Supreme Court Precedent Year 23-No.3473 (1934), “Where the conception of the wife is during the continuance of a marital relationship, the child so born is presumed to be legitimate under Article 1063, Section 1, of the Civil Code.  However, the husband who did not cohabit with his wife during the period of conception may bring an action for disavowal under Section 2 of the same Article.  If the husband has failed to bring the action or his petition has been denied, the legitimacy of the child is then ascertained beyond anyone’s objection”; and Supreme Court Precedent Year 75-No.2071 (1986), “Where the conception of the wife is during the continuance of a marital relationship, the child so born is presumed to be legitimate under Article 1063, Section 1, of the Civil Code even if the husband had not cohabited with his wife during the period of conception.  Before one of the spouses brings a successful action for disavowal, the legitimacy of the child may not be denied by anyone, thus it is impossible for an adulterer to acknowledge his child under the law” should no longer be applied.  In response, the concerned legislative authorities shall endeavor to amend the relevant laws regarding the legal subject and the extinctive prescription of disavowal.  They shall also take into consideration whether the child has reached majority and whether the child knows the fact that he/she has no blood relations with the legally presumed father so as to amend the law to allow the child to bring an action for disavowal within a reasonable period of time under specified conditions.

       According to J.Y. Interpretations Nos.177 and 178, if a statute or a precedent invoked by a finalized judgment is declared unconstitutional by this Yuan as a result of the people’s application for a judicial interpretation, the disadvantaged party of the judgment may, basing the petition on that judicial interpretation, apply for relief according to the law of litigation procedure.  If the party of this case is not entitled to a retrial, he shall be allowed, within a year after this Interpretation is announced, to bring an action for disavowal against the legally presumed father.  In such case, relevant provisions on the disavowal of paternity in the Code of Civil Procedure including Articles 589, 594, 595, 596-I & II shall apply mutatis mutandis.  When the action is initiated by a statutory agent, it should be brought for the child’s best interests, which is also the legislative purpose of the Civil Code regarding the parent-child relationship.

       The existing law which disqualifies a natural father from bringing an action for disavowal re his child presumed to have been born in wedlock is intended to prevent damage to marriage stability, family harmony and the right of a child to education and nurture.  If the law allowed such litigation, the petitioner would not only disclose the privacy of the other party’s marital relation but also make a claim for his misconduct of intervening in the other party’s marriage.  Such law would contravene the commonly accepted social values.  Under such considerations, the law has to restrict the exercise of litigation right in order to prevent damage to another’s rights and to maintain the social order, and is thus not contrary to the Constitution.  As to whether the legislators shall consider certain conditions such as the facts that spouses do not always cohabit or the natural father is raising his illegitimate child, etc., thus loosening the restrictions on such actions to a certain extent, this is a matter of legislative discretion.

*Translated by Professor Dr. Amy H.L. SHEE.