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  • 學位論文

身心障礙者信託法制之比較研究

A Comparative Study of Trusts for People with Disabilities

指導教授 : 黃詩淳

摘要


信託在運作上富有彈性,且深具社會功能。本文即以比較法方式,分析英美及亞太鄰國如何運用信託,作為身心障礙者財產管理及身上照護規劃之工具,並比較各國制度特色,反思我國現行信託法制,以他國之經驗供我國參考。 信託源於衡平法(Equity),且英、美兩國之信託制度發展成熟,因此本文首先介紹英國「公共受託人」組織,以及美國「特殊需求信託」制度。前者提供「公共」信託服務,對象多為身心障礙者、未成年人等社會弱勢者。而後者則是為了補充身心障礙者的生活需求,以「私人」為信託服務之提供者,身心障礙者家庭可依自身之考量,於市場上尋找不同類型的受託人,取得相關服務。 另外,本文亦查考亞太地區身心障礙者信託之發展情形。新加坡「特殊需求信託公司」是由政府設立之非營利機構,為身心障礙者家庭提供專業、可負擔的信託服務,納入各領域專家,除財產管理外,亦結合個案經理(case manager)擬定照護計畫(care plan),讓身心障礙者完整規劃其安養。此外,韓國「發展障礙者信託」由「社福團體」擔任受託人,組織本身具「專業職能」,更能切實照顧身心障礙者之需求。而香港刻正研議「公共信託」機構,與新加坡類似,由政府擔任受託人,結合信託並規劃照護方案,為身心障礙者安養生活預做安排。 2014 年,我國以制定施行法之方式,將聯合國身心障礙者權利公約(CRPD)內國法化,本於「在所有政策領域中保障及促進身心障礙者權利」之公約要求,應對我國現行身心障礙者信託制度進行檢討。本文認為,現行制度在實踐上面臨困境,主要即市場上安養信託與身心障礙者家庭之需求似有落差,另外,公部門、特別是社政主管機關於安養信託中之角色似過於消極。本文建議,第一,可嘗試將信託服務與照護方案進一步結合,提供整合性的服務。第二,自社會安全角度觀之,社政主管機關應強化對安養信託之行政監督,例如建立聯繫機制,以保障信託受益人(身心障礙者)之基本權利。綜上所述,政策上應建立能調和「身心障礙者自主(權利)」以及「提供必要支援(保護)」兩大價值面向之信託制度。

並列摘要


Trust is a flexible legal arrangement with many functions, offering good solutions to social issues. This paper examines the trust law and practices for people with disabilities of the UK, the US, Taiwan, and several neighboring jurisdictions in East Asia. The paper then points out the difficulties in practice of Taiwanese trust law. By comparing the similarities and differences of trust law and practices among jurisdictions mentioned above, as well as analyzing the characteristics of each legal system, the paper eventually comes up with suggestions and solutions to improve the trust law and practices for people with disabilities of Taiwan. Firstly, the UK has a Public Trustee Office, providing trusts and estates services for minors and people with disabilities who are lack of competence in property management and cannot find a suitable trustee. Some other Commonwealth jurisdictions also have their own public trustee. On the contrary, there are various trust services offered by private sector or NPOs in the US. Therefore, American families often set up a Special Needs Trust (Supplemental Needs Trust) for the benefit of their loved one with disability. They can choose a trustee among banks, trust companies, attorneys, CPAs, as well as NPOs (pooled special needs trust). Secondly, the government of Singapore set up a state-owned organization called Special Needs Trust Company (SNTC), providing "affordable" trust services for people with disabilities. Though both offered by government, the difference between Public Trustee of UK and SNTC of Singapore is that the latter combines trust with a "care plan". To draft a care plan, parents work closely with a "case manager" of SNTC, who is responsible for supervising the care received by person with disability. On the other hand, The Autism Society of Korea, an NPO, creates a Trust Scheme for people with developmental disabilities in South Korea. The Society itself acts as a trustee, which has an advantage of being a social service professional, knowing the needs of the beneficiaries very well. The trust scheme of The Society is to some degree similar to a pooled Special Needs Trust in the US, since both of the trustees are NPOs. Moreover, a survey conducted by the University of Hong Kong in 2016 reveals that there is a strong demand for an affordable government-run Special Needs Trust in Hong Kong for people with intellectual disability. Hence, the government of Hong Kong is now considering setting up a public trust company like SNTC of Singapore. Lastly, by passing the "implementation act", Taiwan recognizes the domestic legal effects of rights as provided for in the UN CRPD. It is therefore necessary to scrutinize domestic legal environment concerning rights protection of people with disabilities, including civil and commercial law. The paper argues that the legal practices of trust for people with disabilities in Taiwan have faced some difficulties. Many families who have member with disability, especially an individual lack of competence in property management, do not know the benefits or have few incentives to establish a trust, which can in fact keep financial security of their loved one and manage their property professionally. Since the size of asset and annual managing fee set by trust banks are relatively low, the paper argues that the difficulties result from the traditional mindset of keeping money on hand, insufficient safeguard from the government, and main concern of long term care (rather than pure financial affairs). Besides overall promotion of trust, the paper suggests that the social affairs authorities in Taiwan should involve in the special needs trusts within the necessary range, especially setting up a "connection mechanism" to supervise the trustee periodically. In addition, trust banks can try to cooperate with social groups to provide innovative services integrating care plan program. In conclusion, it’s essential to build up a trust system that respects the self-determination of people with disabilities while at the same time actively provides necessary assistance for them to fulfill their rights.

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