論死後終止收養關係

我國民法第1080條之1第1項規定「養父母死亡後，養子女得聲請法院許可終止收養。」其立法目的在使養子女於養父母死亡後，有機會回本生家或再由他人收養，以改善其生活環境；惟同條第4項又規定「法院認終止收養顯失公平者，得不許可之。」何謂顯失公平？實務上法院又採取何種態度？再者，母法之日本法允許養父母之一方或雙方死亡時，養子女得僅與其中一方終止收養，我國是否應做同一解釋？日本法早已修法允許養父母於養子女死亡後亦得終止收養，我國是否應跟進？結論上，①為了尊重養子女之意願並貫徹保護養子女利益之立法宗旨，「養父母死亡」應解釋為「養父或養母死亡」，使養子女得選擇其父母或人生。②從當事人平等之觀點，本文主張應立法賦予養父母聲請權，使其亦有機會終止其與死亡養子女之親屬間之關係。③實務中，死後終止收養之聲請人多為成年養子女，法院多認為「終止收養須非對養父母、養家親屬、本生親屬顯失公平」，始得許可之；惟從我國之高許可率，可以發現我國死後終止收養之制度上意義在保障未成年養子女之生活環境與健全成長，實際上意義則在尊重成年養子女之自我認同乃至保障其認祖歸宗之權益。本文遵循死後終止之立法宗旨在改善養子女之生活環境，並同時尊重傳統習慣及社會事實，主張將民國74年以前成立之收養，只要養父母無子女且養子女有改姓者，均推定養父母之收養目的為延續香火。期盼法院在保護養子女之利益與實現養父母之收養目的間，能取得適當之平衡並發揮其把關之功能。

關鍵字

死後終止收養；顯失公平；法院之許可；養子女之利益；養子女之意願；自我認同；認祖歸宗；父母選擇權；延續香火；傳宗接代

並列摘要

Article 1080-1, Paragraph 1 of the Civil Code stipulates ＂after the death of the adoptive parents, the adopted child may petition the court for approval to terminate the adoption.＂ The legislative purpose of the law is to give adopted children, after the death of their adoptive parents, the opportunity to return to their natural parents' home or to be adopted by others, in order to improve their living environment. However, Paragraph 4 of the same article also stipulates ＂the court shall not approve the termination of adoption if the court determines that the termination is obviously unfair.＂ What does ＂obviously unfair＂ mean? What attitude will the court take in practice? Moreover, the mother law of the Japanese law allows adopted children to terminate their adoption with only one parent after the death of one or both adoptive parents. Therefore, should Taiwan make the same interpretation? Japanese law has also been amended to allow the adoptive parents to terminate the adoption after the death of their adopted children. Should Taiwan also follow this path? This paper notes in conclusion that (1) in order to respect adopted children's will and to implement the correct legislative purpose of protecting adopted children's interests, ＂the death of adoptive parents＂ shall be interpreted as ＂the death of adoptive father or mother＂, so that the adopted children may choose their parents or their own life. (2) From the perspective of party equality, this paper argues that the adoptive parents shall be given the petition right by law, so that they can also have the opportunity to terminate kinship with their dead adopted children. (3) In practice, most adopted children petitioning for termination of adoption after death are adults, and the court often considers that ＂the termination of adoption shall be obviously fair to the adoptive parents, their relatives, and natural relatives＂ before any approval. However, the high rate of approval in Taiwan shows that the institutional significance of the termination of adoption after death is to ensure a proper living environment and sound growth of adopted children who are minors, and the practical significance is to respect the self-identification of adopted children after they grow up, and protect their rights and interests of tracing their ancestry. By abiding by the legislative purpose of the termination after death to improve adopted children's living environment and respecting traditional customs and social facts, for adoptions established before 1985, as long as the adoptive parents have no children and the adopted children have changed their family names, this paper advocates to presume that the purpose of the adoptive parents is to continue the family line. It is expected that the court can achieve an appropriate balance between protecting the adopted children's interests and realizing the purpose of adoptive parents, thus taking on its role as a guardian of society.

並列關鍵字

Termination of Adoption after Death ； Obvious Unfairness ； Court's Approval ； Adopted Children's Interests ； Adopted Children's Will ； Self-Identification ； Ancestry Tracing ； Parental Choice ； Continuation of Family Line ； Procreation