祭祀公業爭議問題之研究—以釋字第728號解釋為中心

祭祀公業源自於宋代祭田，為以祭祀祖先之目的而設立的獨立財產，因清代及日據時期之特殊背景而盛行於臺灣，歷經數百年發展，為臺灣特殊之民事習慣，並一直保存至今。祭祀公業具有維持宗族之意識，及崇祖睦親之意義與價值，起初之設立是來自於漢人對祖先之崇拜，及慎終追遠之傳統，因此一開始創立之想法，乃是想利用獨立之財產收益，來達到永久祭祀祖先之目的，但時移境遷，在現今的社會，由於祭祀公業擁有龐大的財產利益，而使子孫爭訟不斷，原先祭祀之目的已日漸式微。派下是祭祀公業之社員，對公業有一定之權利及義務，派下權為派下對祭祀公業所有之權利及義務之總稱，因此有派下權才可分得祭祀公業之財產利益，故派下資格之有無，為祭祀公業常見之爭訟類型。派下資格之認定，通常依傳統慣例，採宗祧繼承，故女子原則上無法取得派下資格，祭祀公業條例之制定，原則上仍尊重此傳統，因此在條例實行前已存在之祭祀公業，發生繼承事實時，除規約有訂定外，否則女子仍難取得派下資格。然在現今男女平權之思想潮流下，繼承法早已不採宗祧繼承之規定，祭祀公業條例仍容許，似乎與現今潮流不相符，但釋字第728號解釋卻認為，基於私法自治原則，及為維護法安定性，該規定並不違反男女平等原則。此解釋宣告後，多位學者撰文批評，支持者甚少，甚至亦有多位大法官提出不同意見書反對。然私法自治原則及男女平等原則，皆為憲法之基本原則，在其相衝突狀況下，該如何適用，為本研究之重點。

關鍵字

祭祀公業、釋字第728號解釋、男女平等原則、派下權

並列摘要

The Sacrifice Worship Guild originated from the sacrifice fields in the Song Dynasty. It was an independent property established for the purpose of sacrificing ancestors. It was popular in Taiwan due to the special background of the Qing Dynasty and the Japanese Occupation Period. For hundreds of years, it has been developed into Taiwan's special civil customs and has been preserved to now. The Sacrifice Worship Guild has not only the consciousness of maintaining the clan but also the meaning and value of worshipping the ancestors. It was originally established from the worship of the ancestors by the Han people as well as the tradition of paying respect to our ancestors and going further and further. Therefore, at the beginning of the creating idea was to use the independence property income to achieve the purpose of sacrifice to the ancestors forever. However, from time to time, in modern society, the huge property interests of the Sacrifice Worship Guild make the debates between descendants and descendants. The purpose of the original sacrifice has gradually faded. The memberships of the Sacrifice Worship Guild have the certain rights and obligations. The sacrifice right of the memberships is the general term for all the rights and obligations of the Sacrifice Worship Guild. As a result, the property interests of the Sacrifice Worship Guild belong to the memberships with the sacrifice right. With or without the qualifications of the memberships is a common type of disputes in the Sacrifice Worship Guild. The determination on the qualifications of the memberships is usually based on traditional practices, that is, to adopt the succession to the headship. Therefore, women cannot obtain the qualifications for the sacrifice in general. The establishment of the Sacrifice Worship Guild regulations still respects this tradition in principle. For that reason, when the fact of inheritance occurs in the existence of the Sacrifice Worship Guild before the regulations implemented, unless the statute is stipulated, otherwise it is still difficult for a woman to obtain the qualification of the membership. However, under the current ideological trend of equal rights between men and women, the inheritance law doesn’t adopt the rule of the succession to the headship any longer. The Sacrifice Worship Guild regulations which are still permit seem to be incompatible with the current trend. But the Interpretation No.728 regards that the rule does not violate the principle of equality between men and women base on the Privatautonomie and maintaining the stability of the law. After this explanation was announced, a number of scholars wrote articles criticizing, few supporters and even several judges raised different opinions. However, the Privatautonomie and the principle of equality between men and women are the basic principles of the Constitution. How to apply them in conflict situations is the focus of this article.