The petitioners asked this Court to review the constitutionality of Article 4 of the Management Charter of the LU Wan-Chun Ancestor Worship Guild (hereinafter “Charter”), adopted on July 31, 1986, which was ruled upon by the Supreme Court in its 99-Tai-Shan-963 Civil Judgment (2010) (hereinafter “the final judgment”). The Charter is neither a “statute” nor “regulation” as provided for in Article 5, Paragraph 1, Subparagraph 2 of the Constitutional Court Procedure Act, and therefore is not eligible subject matter for interpretation. Yet the content of the Charter was cited by the final judgment when it referred to Article 4, Paragraph 1, First Sentence of the Act Regarding Ancestor Worship Guilds (hereinafter “the disputed provision”), as the basis of the main ruling. The disputed provision reads, “For the guilds established before the promulgation of this Act, the qualifications of successors are subject to their guild charters.” Since the petitioners filed their petitions in accordance with the said provision of the Constitutional Court Procedure Act (which was mistakenly listed in the petition as Article 4, Paragraph 1, Subparagraph 2 of the Council of Grand Justices Procedure Act), the disputed provision may be considered the petitioned subject matter to be reviewed as well. This Court may therefore review the constitutionality of the disputed provision. It is so explained here.
An ancestor worship guild is an association with properties donated by the founders for the purpose of worshiping their ancestors or other persons (see Article 3, Subparagraph 1 of the Act Regarding Ancestor Worship Guilds). Its formation and existence involve the freedom of association, right to property, and freedom of contract of the founders and of their descendants. The disputed provision may, in reality, result in different treatment between men and women in cases where the relevant charters follow the traditional clan concept of succession, which limits the succession to male offspring (including adopted sons) only and excludes female offspring in most cases. However, the disputed provision, on its face, does not use gender as a classification to determine the qualifications of successors. Its purposes are to maintain the stability of the legal order and to prohibit ex post facto laws. Moreover, adoptions of these charters were actions of the guild founders and their descendants to establish associations and dispose of their inherited property via private laws. In principle, these actions are to be respected based on the freedom of association under Article 14, property rights under Article 15, and the freedom of contract and principle of private autonomy under Article 22 of the Constitution. The disputed provision may have resulted in different treatment in reality. Such difference, however, is not arbitrary. It does not violate the spirit of gender equality under Article 7 of the Constitution. Nor does it infringe upon women’s right to property.
Nevertheless, Article 4, Paragraph 1, Second Sentence of the Act Regarding Ancestor Worship Guilds provides, “For those guilds without any charter or without any applicable rule in the charter, successors shall be limited to male offspring (including adopted sons).” This Sentence uses gender as a classification to determine the qualifications of successors and thus constitutes different treatment. However, Paragraph 2 of the same Article provides, “For those members without male offspring, their unmarried daughters are qualified to serve as successors.” Paragraph 3 of the same Article provides, Daughters, adopted daughters, and sons-in-law of uxorilocal marriages may also serve as successors, if meeting one of the following criteria: (1) when two-thirds of the current successors agree in writing; (2) when two-thirds of the attending members agree in a meeting with a majority of the current successors of the Assembly present. These two Paragraphs aim to alleviate the different treatment of Paragraph 1. In addition, Article 5 of the Act Regarding Ancestor Worship Guilds provides, “After this Act takes effect, the successors shall include all such persons who jointly take responsibility to worship their ancestors, upon inheritance of any successor of guilds with or without corporate personhood.” This Article also adheres to the principle of gender equality. Nevertheless, different treatments still exist within the overall institution of successors. Under Article 7 of the Constitution, “All citizens of the Republic of China, irrespective of sex ... shall be equal before the law.” Article 10, Paragraph 6 of the Additional Articles of the Constitution reads, “The State shall protect the dignity of women, safeguard their personal safety, eliminate gender discrimination, and further promote substantive gender equality.” The said Additional Article of the Constitution imposes on the State an obligation to promote substantive gender equality. Furthermore, in light of Articles 2 and 5 of the Convention on the Elimination of All Forms of Discrimination Against Women, adopted by the General Assembly of the United Nations on December 18, 1979, the State shall bear a positive obligation to protect women in order to implement substantive gender equality. In determining the qualifications of successors for the ancestor worship guilds established before the promulgation of the Act Regarding Ancestor Worship Guilds, authorities concerned shall review and revise the related provisions, in due time, to ensure that the laws keep pace with time and become more compatible with the principle of gender equality and the people*s freedom of association, property rights, and freedom of contract under the Constitution, by taking into account the State’s positive obligation to protect women under the said Additional Article of the Constitutional vis-à-vis the principle of the stability of the law, as well as social changes and the changing functions of ancestor worship guilds.
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＊Translated by Hsiao-Wei KUAN.
＊＊Also available in Leading Cases of the Taiwan Constitutional Court, Vol. I (2018).