Note: 
This summary constitutes no part of the Judgment but is prepared by the Department of Clerks for the Constitutional Court only for the readers' reference.
Original paragraph numbers that the summarized texts correspond to are put into lenticular brackets after each paragraph. 

Headnotes

    In this Judgment, the Taiwan Constitutional Court (TCC) declared the Second Sentence of Article 4, Paragraph 1 of the Act for Ancestor Worship Guild (hereinafter "AAWG") and Paragraph 2 of the same article unconstitutional. The TCC applied intermediate scrutiny when determining the constitutionality of the gender-based classification presented in the disputed provisions. The TCC ruled that the differential treatment stipulated in the provisions is not of important public interest and its means inappropriate, therefore gender-discriminatory. This Judgment further expanded the scope of protection of gender equality regarding the qualification of ancestor worship guild successors, which was previously decided in J.Y. Interpretation No. 728 (2015). 

Background Note

1. Joint Petitioners I consist of three siblings: Chun-Mei CHEN, Wen-Hsiang CHEN, and Yueh-E YEH CHEN. Joint Petitioners I are the children of Ao CHEN. Ao CHEN, deceased in 2012, is the daughter of Wu Li. Wu LI, deceased in 1956, is a successor of the Lu LI Ancestor Worship Guild (hereinafter "LL Guild"), which was established by his father Chun-Chang LI. The LL Guild has no guild charter. In 2014, other successors of the LL Guild submitted the guild's organization chart of the successors to the competent authority without listing Ao CHEN as a successor. Joint Petitioners I sued the guild, asking to be listed as successors. The case was later dismissed by the Kaohsiung District Court and the Taiwan High Court Kaohsiung Branch Court on appeal. Joint Petitioners I lodged for constitutional complaint with the TCC in 2020, arguing the legal provisions pertaining to the final decision, Article 4, Paragraphs 1 (Second Sentence), 2, and 3; Article 5 of the AAWG, have unfairly limited the qualifications for guild successors using a gender-based classification, consequently violating their rights to equal protection, freedom of association, and right to property under Articles 7, 14, and 15 of the Constitution.
2. Joint Petitioners II consist of four siblings: Chin-He HSU, Jui-Min HSU, Jui-Chang HSU, and Jui-Fa HSU. Joint Petitioners II are the children of Fu-Wen HSU, who deceased in 2002 and was born into an uxorilocal marriage between Tai HSU (the husband) and Yuan HUANG (the wife). Yuan HUANG, deceased in 1978, was a successor of the Tsai HUANG Ancestor Worship Guild (hereinafter "TH Guild"), and the only offspring of the guild founder (initiator) Yeh HUANG. The TH Guild has neither a guild charter nor regulations limiting the qualification of successors to offspring with the HUANG surname. In 2017, other successors of the TH Guild submitted the organization chart of the successors to the competent authority without listing Joint Petitioners II as successors. Joint Petitioners I sued the guild, asking to be listed as successors on the grounds that they believe their father Fu-Wen HSU is also a qualified successor. The case was later dismissed by the Tainan District Court, Taiwan High Court Tainan Branch on the first appeal, and the Supreme Court on the second appeal. Joint Petitioners I lodged for constitutional complaint with the TCC in 2021, arguing the legal provisions pertaining to the final decision, Article 4, Paragraph 2 of the AAWG violates the right to equal protection under Article 7 of the Constitution. 
3. The TCC deemed that both petitions concern the same legal issue. Their cases were consolidated and later argued on October 18, 2022. 

Summary of the Judgment 

Holding (Summary)

1. The Second Sentence of Article 4, Paragraph 1 of the Act for Ancestor Worship Guild stipulates, "For those [Ancestor Worship Guilds] without any regulations, their successors should be the male offspring of the family (including adopted children)." Paragraph 2 of the same article stipulates, "For those without any male offspring, they should designate the female members in the family who have not been married. The husbands of the female members via uxorilocal marriage or the male children carrying with their mother's surname (including the ones that are adopted or without lawful fathers) may also serve as successors."[1] These provisions fail to include other female offspring of the guild founders (that are married or married via uxorilocal marriage) as qualified successors of the guild, consequently violating gender equality under Article 7 of the Constitution.
    
2. The guild founder's neglected female offspring may provide a preliminary showing of them being the guild founder's lineal descendants and request the ancestor worship guilds to recognize them as a successor. These female offspring shall have the rights and duties as a guild successor from the date of request. In addition, the rights and obligations of existing successors that have already been realized shall not be affected. 

Reasoning

    The Second Sentence of Article 4, Paragraph 1 of the AAWG (hereinafter "Provision I") and Paragraph 2 of the same article (hereinafter "Provision II") use gender as a classification to determine the qualifications of successors, consequently constitute as differential treatment of women.[2] This differential treatment is based on a suspect classification that bears its root in historical stereotypes, which are hard to alter by individuals. Therefore, intermediate scrutiny shall apply to determine whether the disputed provisions violate Article 7 of the Constitution. That is to say, the disputed provisions have to further an important public interest, and the classification it chooses must be substantially related to that interest.【29】

    The  ratio legis of Article 4 of the AAWG stated that "considering that ancestor worship guilds pre-existing this Act were mostly established before the Republic, and that estates of the ancestor worship guilds are not of the same nature as the inheritance of a natural person's, the succession of the (guild) successor's rights shall be distinguished from inheritance in general, and the qualifications of successors shall follow the traditional clan concept of succession under old customs." That is to say, the purpose of the disputed provisions is to respect the old customs of the traditional clan concept of succession and conform to the prohibition against ex post facto laws (or the principle of lex retro non agit; the principle of non-retroactivity).【30】

    The main objectives of the ancestor worship guilds are to express filial piety through worshiping one's ancestors.[3] It makes no difference whether the successors are male offspring or female offspring when it comes to passing down the lineage of veneration. With today's declining birth rate and in the foreseeable future, distinguishing the two will be disadvantageous for the continuance of ancestor worship (or the so-called "passing down the incense of ancestor veneration"). Female offspring nowadays, no matter the surname or whether married or not, is no different from male offspring or male children carrying their mother's surname (which is the matronymic surname in this context) in terms of the willingness and ability to bear the responsibility of venerating the ancestors. Therefore, for the ancestor worship guilds which do not have a guild charter or whose charters do not regulate this matter, keep blocking the female offspring of the guild founders to become a successor under Provision I and II is unreasonable, outdated, and harmful the original purpose of the ancestor worship guilds. 【31】

    Article 7 of the Constitution and Article 10, Paragraph 6 of the Additional Articles of the Constitution dictate that the state is under a positive duty to eliminate gender discrimination, hence the state shall not pass laws that recognize gender-discriminatory traditions or customs. 【31】

    Provisions I and II are laws of this nation, but their purpose is to maintain the tradition and custom of limiting the ancestor worship guild successor qualification to male offspring, and, when there were no male offspring, to unmarried female offspring or their offspring that took their mother's surname . The limitation is based on a classification that is gender discriminatory and historically stereotypical, and results in unfair differential treatment to the female offspring of the guild founders who are not listed as successors of the ancestor worship guild. 【31】

    In conclusion, both Provisions I and II neglected other female offspring of the guild founder as successors based on gender classification. Provision II further poses limitations in the qualification for successors, with the provision's first sentence stipulating restrictions based on marital status, and the second sentence of the provision on whether one takes their mother's surname. The disputed provisions both result in differential treatment that serves no important public interest, and their means are both inappropriate. The provisions violate gender equality enshrined in Article 7 of the Constitution. 【33】

[1] The original translation of the text is "For those without any male offspring, they should designate the female members in the family who have not been married. The husbands of the female members via uxorilocal marriage or the male children carrying with their maiden names (including the ones that are adopted or without lawful fathers) may also serve as successors." [emphasis added]  Here, the text is adjusted by the translator of this summary to avoid confusion.

[2] See J.Y. Interpretation No.728.

[3] Note by translator: Under this context, is equivalent to and interchangeable with the anthropological concept of "ancestor veneration."