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(釋字第 728 號 )      友善列印PRINT  
Interpretation
J.Y.
Interpretation
NO.728  [ Case concerning whether a person is a qualified successor to an existing ancestor worship guild shall be determined in accordance with its internal regulations ]
Date 2015/3/20
Issue Is the relevant provision of the Statutes Governing Ancestor Worship Guilds that guilds existing prior to the promulgation of the Statutes, whether a person is a qualified successor to the guild should be determined by its internal regulations constitutional?
Holding The forepart part of Paragraph 1 of Article 4 of the Statutes Governing Ancestor Worship Guilds stipulates: “For 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.” does not use gender as a criterion for determining the status of a successor. In general, most, if not all, of the related internal regulations of guilds follow the traditional perception of clans in restricting succession to male offspring (including adopted children) only. As a result, female offspring are prohibited to be successors in most circumstances. However, the enactment of the internal regulations for the guilds is an act performed by the founders and their descendants to form an association and dispose of their property under private law. Therefore, based on the principle of the autonomy of private law, the internal regulations shall be respected for the preservation of the stability of the law. The foregoing provision which stipulates whether a person is a qualified successor to a guild should be determined by the internal regulations of the guild and should not be in conflict with the gender equality guaranteed by Article 7 of the Constitution, nor should it damage women’s property rights.
Reasoning The Petitioner requested an interpretation of the constitutionality of Article 4 of the Internal Regulation Governing the Management of the Ancestor Worship Guild of Lu Wan-Chun (hereinafter referred to as the “Internal Regulation”), as prescribed on July 31, 1986, which was applied by the Supreme Court in the civil judgment of No. 99-Tai-Shun-Tzu-963 (2010) (hereinafter referred to as the “final judgment”). The Internal Regulation did not fall within the purview of the “statute” or “administrative regulation” referred to in Subparagraph 2, Paragraph 1 of Article 5 of the Constitutional Interpretation Procedure Act, and therefore was not eligible for a petition of interpretation. However, given that the final judgment applied the forepart of Paragraph 1 of Article 4 of the Statutes Governing Ancestor Worship Guilds, which stipulates: “For 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” (hereinafter referred to as “disputed provision”), as the basis of its reasoning and thus cited the Internal Regulation, the Petitioner requesting an interpretation in accordance with the aforesaid article of the Constitutional Interpretation Procedure Act (which is wrongfully stated as Article 4, Paragraph 1, Subparagraph 2 of the Constitutional Interpretation Procedure Act in the petition) shall therefore be deemed to request an interpretation on the constitutionality of the disputed provision. Hence, this court has the authority to review the disputed provision as the subject matter of this interpretation. This shall be indicated first.

An ancestor worship guild is an association formed by the properties donated by the founders for the purpose of providing services for ancestor worship or other forms of worship (see Article 3, Subparagraph 1 of the Statutes Governing Ancestor Worship Guilds). The establishment and existence of an ancestor worship guild involves the freedom of association, property rights and freedom of contract of the founders and also of their descendants. The disputed provision constitutes differential treatment in substance in cases where the relevant internal regulations follow the traditional perception of clans in restricting succession to male offspring (including adopted children) only. Thus, female offspring are prohibited from becoming successors in most cases. However, the disputed provision does not provide gender as a criterion in form for determining the status of the successor and the objective is to preserve the stability of the law and the principle of the prohibition of retroactive law. Furthermore, the enactment of internal regulations for guilds is an act performed by their founders and their descendants by which an association is formed and property disposed of under private law. This should, in principle, be respected based on the protection of the freedom of association in Article 14 of the Constitution, the protection of property rights in Article 15 of the Constitution, and the protection of freedom of contract and the autonomy of private law in Article 22 of the Constitution. Therefore, even though such a disputed provision may constitute differential treatment in substance, since it is not arbitrary, it is not in conflict with the principle of gender equity embodied in Article 7 of the Constitution nor does it infringe women’s right to property.

Nevertheless, the latter part of Paragraph 1 of Article 4 of the Statutes Governing Ancestor Worship Guilds stipulating that “For those guilds without any internal regulations or applicable rules under the internal regulations, successors should be the male offspring of the family (including adopted children)”, uses gender as a criterion for determining the status of a successor, and thus constitutes differential treatment. Paragraph 2 of the same article provides that “For those current successors without any male offspring, female members of the family, who have not been married, are qualified to serve as successors”. Paragraph 3 of the same article provides that “Others (women, adopted female children and adopted sons-in-law) fulfilling one of the following criteria can serve as successors too: (1) when two-thirds (2/3) of the current successors agree in writing; (2) when two-thirds (2/3) of the attending successors agree in a meeting at which 50% of the surviving members of the guild must be present”. In such cases the issue of differential treatment is considered as having been mitigated or even eliminated. Furthermore, Article 5 provides that “After the Statutes take effect, in cases of inheritance, the successors of the guild as well as its legal entity shall be those persons who jointly take responsibility to provide services for ancestor worship”. Thus the law is based on the principle of gender equity. However, differential treatment within the system of succession still exists. According to Article 7 of the Constitution, “All citizens of the Republic of China, irrespective of sex, shall be equal before the law”; Paragraph 6, Article 10 of the Amendment to the Constitution also specifies: “The State shall protect the dignity of women, safeguard their personal safety, eliminate sexual discrimination, and further promote substantive gender equality.” By the foregoing amendment to the Constitution, the State is charged with the duty to promote substantive gender equality. Additionally, considering Articles 2 and 5 of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women, the State shall bear a positive duty and provide legal protection for women to realize substantive gender equality. In determining the status of successors for guilds that existed before the promulgation of the Statutes Governing Ancestor Worship Guilds, relevant government agencies should conduct a timely review and modification of the related law to ensure that they are keeping pace with time, taking into consideration the State’s positive duty to protect women under the foregoing amendment to the Constitution, the principle of the 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.
Editor's Note Summary of facts:
The petitioner Lu Pi-Lien (in an uxorilocal marriage) is the eldest daughter of Lu Chin-Jung, who is one of the successors to the Ancestor Worship Guild of Lu Wan-Chun. The other petitioner, Lu Chia-Sheng, is Lu Pi-Lien’s son (He carries his mother’s surname). Lu Chin-Jung’s living was maintained by the petitioners and he had three sons, none of whom has a male child. When Lu Chin-Jung and two of his sons passed away, only the youngest son, Lu Hsueh-Chuan, remained. The forepart of Article 4 of the Internal Regulations Governing the Management of the Ancestor Worship Guild of Lu Wan-Chun, as prescribed on July 31, 1986, provides that “In a case where the registered successor has died, the lineal heirs have the right to appoint a representative to assume the status of successor, provided, however, that a woman has no right of inheritance pursuant to the relevant government regulations”. Consequently, succession to Lu Chin-Jung’s registered membership in the Ancestor Worship Guild of Lu Wan-Chun is inherited only by Lu Hsueh-Chuan. The petitioners thus initiated litigation to claim their right to inherit the status of successor but the case was dismissed by the Banciao District Court (now New Taipei District Court). The petitioners then appealed but it was dismissed both in the civil judgment of the Taiwan High Court No. 97-Shun-Tzu-617 (2008) and in the civil judgment of the Supreme Court No. 99-Tai-Shun-Tzu-963 (2010) (hereinafter referred to as “final judgment”). All above-mentioned civil judgments applied the forepart of Paragraph 1 of Article 4 of the Statutes Governing Ancestor Worship Guilds, which stipulates: “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” and referred to the foregoing Internal Regulation which indicates that “only the male lineal heirs are qualified to inherit the status of successor” as the reasoning. Consequently, the petitioners then requested an interpretation on the ground that the disputed provision applied in the final judgment was unconstitutional under Article 7 of the Constitution.
Opinion
(Files)
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