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  • Interpretation
  • No.668
  • Date
  • 2009/12/11
  • Issue
    • For inheritances commenced prior to the implementation of the Civil Code on Inheritance, whether designations of heir is permitted only for those taken place prior to the implementation of the Code?
  • Holding
    •     Article 8 of the Enforcement Act of Civil Code on Inheritance stipulates: “For inheritance commenced prior to the implementation of the Civil Code on Inheritance, if the deceased should have no linear descendant, and there is no other heir in accordance with the laws of the time, the heir(s) shall be determined in accordance with the provisions of the Civil Code on Inheritance as of the date of its implementation.” The requirement that “there is no other heir in accordance with the laws of the time” should include situations where no selected heir(s) could have been made in accordance with the laws of that time. Therefore, for inheritances that commenced prior to the implementation of the Civil Code on Inheritance, and that heir(s) may be selected in accordance with the laws or customs of the time, such selection of heir(s) is not limited to those taken place before the implementation of the Civil Code on Inheritance. However, given that the Civil Code on Inheritance has been implemented in Taiwan for over sixty-four years, and the need to avoid prolonged suspension and indetermination on succession, which hinders the stable order of Civil Code on Inheritance, for inheritance which commenced prior to the implementation of the Civil Code on Inheritance but with heir(s) yet to be legally designated as of the date this Interpretation is issued, the succession matters shall be determined in accordance with the inheritance mechanism under the current legal system on the date this Interpretation is issued.
  • Reasoning
    •     Article 1 of the Enforcement Act of the Civil Code on Inheritance, as promulgated on January 24, 1931 and implemented on May 5, 1931, stipulates: “For inheritance commenced prior to the implementation of the Civil Code on Inheritance, except otherwise provided in this Act, the Civil Code on Inheritance does not apply.” Article 8 of the same Act provides: “For inheritances commenced prior to the implementation of the Civil Code on Inheritance, if the deceased should have no linear descendant, and there is no other heir in accordance with the laws of the time, the heir(s) shall be determined in accordance with the provisions of Civil Code on Inheritance as of the date of its implementation.”  The purpose is to allow inheritances commenced prior to the implementation of the Civil Code on Inheritance continue to apply the laws or customs existing before the implementation of Civil Code on Inheritance. Therefore, inheritance matters occurred before October 24, 1945 shall apply previous customs in Taiwan and not to be affected by the subsequent implementation of the Civil Code on Inheritance.
      
    •     A Civil Judgment of the Supreme Court (47 Tai Shan Tsu No. 298 (1958), which has been designated as a judicial precedent) takes the position that for inheritances commenced prior to the implementation of the Civil Code on Inheritance in Taiwan, the existing Taiwanese inheritance customs of the time shall be applicable, i.e., on the death of the head of the household (the inherited), if there was no heir being identified by law or designation, a [new] head of the household may be legally selected by the family meeting of the deceased to become the heir, regardless of whether the designee is male or female or any limitation on the duration of designation. Yet an Administrative Judgment of the Kaohsiung High Administrative Court, (96 Su Tsu No. 959 (2007); appeal denied, Supreme Administrative Court, 97 Tzai Tsu Ti No. 3726 (2008)) considers, rather, that, since the implementation of the Civil Code on Inheritance in Taiwan, the family meeting may no longer select a head of the household to inherit. Thus, in the event a heir was not selected before the implementation of the Civil Code on Inheritance, no longer can such selection be done since the implementation and all matters that concern the inheritance shall be resolved in accordance with the current Civil Code on Inheritance. There is a diversity of opinions concerning the application of Article 8 of the Implementing Act between different adjudication systems.
      
    •     Given that the designation of heir(s) must be taken place after the inheritance has occurred, if the deceased’s time of death was not too far away before the implementation of the Civil Code on Inheritance, or was declared as such by the court  after the implementation of the Code, it can hardly be expected or possible that heirs can be selected before the implementation of the Code. As a result, “no other heir in accordance with the laws of the time,” as stipulated under Article 8 of the Enforcement Act of the Civil Code on Inheritance, should include situations where no heir(s) could have been selected in accordance with the law at that time. Therefore, for inheritances that commenced prior to the implementation of the Civil Code on Inheritance and that heir(s) may be selected in accordance with the laws or customs of the time, such selection of heir(s) is not limited to those taken place before the implementation of the Civil Code on Inheritance. However, given that the Civil Code on Inheritance has been implemented in Taiwan for over sixty-four years, and the need to avoid prolonged suspension and indetermination on succession, which hinders the stable order of Civil Code on Inheritance, for inheritance which commenced prior to the implementation of the Civil Code on Inheritance but with heir(s) yet to be legally designated as of the date this Interpretation is issued, the succession matters shall be determined in accordance with the inheritance mechanism under the current legal system on the date this Interpretation is issued.
      
    • Translated by Assistant Professor Huai-Ching Robert Tsai.
      
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