Women and Justice: Keywords

Domestic Case Law

司法院大法官會議第728號解釋 (J.Y. Interpretation No. 728) Constitutional Court (2015)

Gender discrimination, Harmful traditional practices

The court petitioner, the eldest daughter of a registered successor of an “ancestor worship guild,” was prohibited from inheriting the status of successor after her father’s death due to internal regulations of the guild, which only allow male heirs.” The lower courts dismissed the petitioner’s claims, and the Constitutional Court affirmed. The court held that the internal regulation of the guild was not a “statute” or “administrative regulation” and was therefore ineligible for a petition of interpretation on constitutionality under the Constitutional Interpretation Procedure Act. The court also found that Article 4 of the Statutes Governing Ancestor Worship Guilds, which stipulates that “for the guilds that existed before the promulgation of the Statutes, whether a person is a qualified successor to a guild should be determined by its internal regulations,” was not unconstitutional because the provision does not provide gender as a criterion for determining the status of the successor, and the objective is to preserve the stability of the law and to uphold the principle of prohibiting retroactive law. Moreover, the enactment of internal regulations for guilds should be respected based on freedom of association, property rights, freedom of contract, and the autonomy of private law. Therefore, even though the disputed provision may constitute differential treatment in substance, because it is not arbitrary it is not in conflict with the principle of gender equity nor does it infringe women’s right to property. However, the Constitutional Court urged relevant government agencies to review the related law to ensure that they are keeping pace with the times, taking into consideration the State’s positive duty to protect women under the Constitution, the principle of stability of law, changes in social conditions, and the adjustment of functions within an ancestor worship guild, so as to conform to the principle of gender equality and the constitutional intent to safeguard the people's freedom of association, property rights, and freedom of contract.

聲請人是一個 「祭祀公業」登記派下員的長女,由於該祭祀公業的內部規約只允許男性繼承人,因此在其父親去世後被禁止繼承派下權。下級法院駁回了聲請人的請求,憲法法院維持原判決。法院認為,祭祀公業內部規約並非「法律」或「行政法規」,因此不符合司法院大法官審理案件法規定的聲請釋憲要件。法院還認為,祭祀公業條例第4條規定:「本條例施行前已存在之祭祀公業,其派下員依規約定之。」並不違憲,因為該規定並未以性別作為決定繼承人身份的標準,其目的是為了維持法律安定性及禁止法律溯及既往的原則。此外,基於結社自由、財產權、契約自由和私法自治,祭祀公業內部規約之制定應予尊重。因此,即使該爭議條款在實質上可能構成差別待遇,但由於其並非恣意,因此與性別平等的原則沒有衝突,也沒有侵犯女性的財產權。然而,憲法法院敦促相關政府機關審查相關法律,以確保它們與時俱進,將國家依憲法規定保護婦女的積極義務、法律穩定性原則、社會環境的變遷以及祭祀公業內部功能的調整等納入考量,從而符合性別平等原則和保障人民的結社自由、財產權和契約自由的憲法目的。