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Holding |
Article 1089 of the Civil Code, which stipulates that in situations of parental disagreement in exercising parental rights over that of a minor the father shall have the right of final decision, is incompatible with Article 7 of the Constitution, which proclaims that both sexes are equal under the law, as does Article 9, Paragraph 5, to the Amendment in eliminating sexual discrimination. This Article should be examined and amended. This Article shall be void within two years from the day of this Interpretation.
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Reasoning |
Article 7 of the Constitution states: "All citizens of the Republic of China, irrespective of sex, religion, race, class, or party affiliation, shall be equal before the law." Article 9, Paragraph 5, to the Amendment provides: "The State shall protect the dignity of women, safeguard their personal safety, eliminate sexual discrimination, and further substantive gender equality." The union of man and woman through marriage, and the children created from that union are subject to the above constitutional obligations. In an exceptional situation, where discrimination based on sex is to be allowed by the Constitution, the exceptional situations must be grounded on biological differences or the differences in societal functions as the consequence of the biological differences in order for the exception to be held valid.
Article 1089 of the Civil Code stipulates that "parental rights and duties concerning minors, unless specified by other statutes, shall be borne by both parents. Should there be disagreement in the exercise of parental rights and duties, the father shall be accorded the right of final decision. In cases where one of the parents becomes incapable of exercising these rights, the spouse shall assume the duties. Should it be the case that both parents are incapable of exercising parental rights, the next capable person shall assume those duties." This particular Article was enacted during the nineteenth year of the Republic, the product of cultural traditions and social mores of a bygone era. With widespread education, and equal access to education granted to both sexes, favorable changes in employment conditions, and women having greater career opportunities, conditions are virtually indistinguishable for both men and women; this Article stipulates that in the event of disagreement, the father shall have the final say; the recommended action should be a compromise between the two parents in the interest of preserving gender equality in exercising parental rights, or else, in the event of such a disagreement, the position of the mother will be subordinated to that of the father, which constitutes a gross violation of gender equality, and creates a glaring discrepancy with the actual status of women in today's family.
Based on the above, Article 1089 of the Civil Code, which stipulates that in situations with regard to parental disagreement in exercising parental rights over that of a minor, the father shall have the right of final decision, is therefore incompatible with Article 7 of the Constitution, which states that both sexes are equal under the law, and also with Article 9, Paragraph 5, to the Amendment which prohibits sexual discrimination.
This Article should be amended and shall be void within two years from the day of this Interpretation.
This problem should be resolved based on the premises of the principle of gender equality and the best interest of minors; in the event that such a disagreement arises, the nearest relative or a conference of relatives, or the family court decision shall have the right of final decision, unless there are extraordinary circumstances in which steps other than the normal course of action should be considered.
Finally, as for the Legislative Yuan's submission of an official letter titled Tai-Yuan-Yi No. 2162 to this Yuan on July 26th of this year (1994), in which the former Yuan sought to obtain this Yuan's opinion on whether Members of that Yuan are qualified to propose future amendments to the unconstitutional Article 1089 of the Civil Code, the request made is not in conformation with Article 4, Paragraph 1, Subparagraph 1, of the Constitutional Interpretation Procedure Act. However, since the Article that the former Yuan is seeking to have interpreted is the same one that this Yuan has just rendered an opinion on in the foregoing Interpretation, it is therefore unnecessary to make a further interpretation. This situation is herein stated concurrently.
Translated by Mr. Cing-Kae Chiao.
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