繼承自治？－自排灣族的觀點出發

本文之研究目的在於釐清並闡述排灣族長嗣繼承制度的具體內容，確認長嗣繼承制度於排灣部落中，是否仍具有習慣法的地位，並檢視繼承法律自治於排灣部落當中，是否具有必要性。基於「法律多元」與「原住民權利保障」的論述，本文採取文獻探討、參與觀察及深度訪談等研究方法。本文發現，長嗣繼承制度在繼承權利人、繼承標的與繼承權喪失事由等方面，和民法繼承編的規範有許多差異。長嗣繼承制度於受訪的部落當中，仍被民眾確信其具有法之效力，且仍受到反覆踐行。而排灣族多數的受訪者無論其身為長嗣或餘嗣，貴族或平民，均認為長嗣繼承應屬排灣族的法律自治事項，應將其由習慣法的法源層次提升到實體立法的層次。本文建議，長嗣繼承制度的習慣法成文化後，應定時檢討修正，以符合部落民眾之法律意識。未盡扶養父母或照顧旁系血親之家庭責任的長嗣，也應使其喪失繼承權，並賦予代長嗣履行家庭責任的餘嗣「多分遺產」的權利。

關鍵字

排灣族；繼承權；法律多元；習慣法；原住民

並列摘要

The eldest child of each Paiwan family is called ”vusam”, which means the best seed kept from the last season. According to the Paiwan tradition, vusam is entitled to the social status and most of the property owned by the family. This research aims to clarify and demonstrate the content of ”vusam inheritance custom” in Paiwan tribes. Whether such inheritance custom forms the basis of customary law is then scrutinized. The necessity of self-governance in the aspect of inheritance is also examined. Based on the discourses of legal pluralism and indigenous rights, ”grounded theory in law” is adopted as the methodology of this research. Case studies with reference to customary inheritance law of Paiwan were carried out through literature review, participatory observation of the annual harvest festival, and in-depth interviews with district council's mediators and the indigenous people themselves, so as to capture the custom of ”vusam inheritance” rooted in Paiwan. This article argues that such inheritance custom is regarded as law and practiced constantly in Paiwan tribes. The custom of ”vusam inheritance” should not be recognized only as a source of law within the jurisdiction of the civil law tradition, inferior to the statutes. It should be codified so as to rule inheritance disputes of the members of Paiwan tribes. This article suggests that the concept of ”contribution portion” should be introduced to the codified customary law of vusam inheritance so that vusam would be entitled to most of the family property in cases where the responsibility of looking after or giving financial help to the family members has been fulfilled by him or her. The younger brothers or sisters of vusam should be able to obtain a bigger share of family property in cases in which they make contribution to the maintenance of parents. The codified customary law of vusam inheritance should also be reviewed regularly based on the legal consciousness of Paiwan people.