生前之事與死後之世：死後立嗣的臺灣法律史考察

Abstract

本文考察「死後立嗣」的法律實踐在臺灣法律現代化歷程中的變遷。死後立嗣為傳統中國家族重視祭祀觀念下的產物，其目的在於為家族中沒有後嗣而死亡的男性擇立嗣子，以延續對死者及父祖的祭祀責任，並傳承死者的家產房分。本文觀察的主軸為：在死後立嗣實踐中，「強調『祭祀、身分、財產」的相互連結，並重視家族意志決定」的傳統漢人家族理念，如何受到「不以延續祭祀為規範考量，並重視個人意志決定」的現代民法理念所影響，為本文試圖回答的問題。 清治時期，臺灣的死後立嗣實踐透過律例規範與社會實踐，具體化了傳統漢人家族重視延續祭祀及家族意志決定的理念。然而，臺灣社會對於嗣子資格認定有較律例規範更多元的想像。在日治時期，現代民法理念首次被用以詮釋對臺灣的死後立嗣舊慣內涵。此外，死後立嗣實踐中，祭祀因素與財產繼承的連結關係，被初步分離。戰後臺灣所實施的中華民國民法立法當時，由於否定宗祧繼承原則且重視遺產歸屬、身分關係中的意思合致等現代民法觀念，死後立嗣實踐被質疑與否定。死後立嗣實踐於民法立法時，變形為指定繼承制度，與在繼承編施行法相關規定下適用過往法律等兩種方式存在，並在戰後施行、存續於臺灣。最終，隨著1985年的身分法修法及2009年的大法官釋字668號解釋作成，死後立嗣正式消失於臺灣的法律制度。 本文結論認為透過這三個時期的死後立嗣實踐變化，能夠說明現代民法理念如何漸進地透過排除祭祀因素對財產繼承的影響，及強調個人意志作為身分關係的建立基礎等原則，拆解死後立嗣實踐中「祭祀、身分、財產」三者間的連結關係，並否定基於家族決定代替死者決定與他人建立身分關係的正當性。但據此亦可看見，祭祀因素如何殘存於晚近的臺灣法制上。本文認為能夠以此為例，更細緻的再檢討傳統漢人家族觀念與現代民法理念在法制上的消長關係。

This thesis examined the legal practice of “the Appointment of Heir after Death” in the course of legal modernization of Taiwan. As the product of the highly-concerned concept of worshipping in traditional Chinese family, “Appointment of Heir after Death” has the objective of producing an heir for the deceased heirless male in the family, thus continuing the responsibility of worshipping the deceased and his male ancestry, while at the same time, enabling the succession of property of the death’s branch. This thesis tries to answer the question of how the philosophy of traditional Han family──which emphasizes the inter-connection of “worship, status, property”, and values the will of the family── was influenced by the philosophy of modern civil law──which doesn’t view the continuation of worship as a normative concern, and values the determination of personal will. Following the development of Taiwan legal history, this thesis divided the course of change of the legal practice of “Appointment of Heir after Death” into three periods: the Qing Rule Era, the Japanese Rule Era, and Postwar Taiwan Era. During the Qing Rule Era, the practice of “Appointment of Heir after Death”substantialized traditional Han family philosophy of attaching importance to the continuation of worshipping and determination of family will, through Qing statutes and sub statutes, and social practices. But Taiwanese society has a more diverse imagination than the Qing statutes has designated, as to the qualifications of who can be the heir that bears the burden of worshipping. During the Japanese Rule Era, modern civil law concepts was applied to interpret the essence of the Taiwanese traditional custom of “Appointment of Heir after Death” for the first time. Meanwhile, there was a preliminary split in the connection between elements of worshipping and the succession of property, in the practice of “Appointment of Heir after Death”. In Postwar Taiwan, ROC civil law had established the legislative principle of abandoning patrilineal succession. The modern civil law philosophy of attaching importance to the concepts such as succession of inheritance and mutual consent in family relationships, was used to question and deny the legal meaning of “Appointment of Heir after Death”. The practice of “Appointment of Heir after Death” was thus transformed and preserved in Postwar Taiwan civil law institution in two forms: as the institution of Designated Inheritance, and as the application of former laws according to regulations under Enforcement Law for Succession Law of Civil Code. At last, following the amendment of family law and succession law in 1985, and No.668 Interpretation of the Constitutional Court,“Appointment of Heir after Death” has vanished formally in the legal institution of Taiwan. In conclusion, this thesis believes that through the examination of the transformation of the “Appointment of Heir after Death” practices in the aforementioned three eras, we can explain how the philosophy of modern civil law dismantled the inter-connection between “worship, status, property”, and denied the legitimacy of constructing status relations for the deceased based on family determination, through gradual exclusion of the influences worship elements posed upon property succession, and through the emphasis of principles such as “individual will as the foundation of status relationship”. However, it could also be seen that how worship element survived in late Taiwan legal system. This thesis believes that it is possible to use it as an example to reconsider the antagonism relationship between modern civil law philosophy and the concept of Taiwanese traditional Han family in the legal institution more specifically.