The Legal Status of Illegitimate Child: Focusing on Right to Inheritance
Date Issued
2014
Date
2014
Author(s)
Hsu, Ya-Chu
Abstract
Due to the low birth rate nowadays, the protection of illegitimate children gains more and more attention. On May 23, 2007, Taiwan’s Civil Code Part VI (Family Law) was amended and Article 1067 started to allow the child born out of wedlock to claim affiliation to the putative father even after the death of the father. However, Article 1069 provides that “the effect of affiliation to a child born out of wedlock is retroactive as from the time of birth, but the existing rights of the third parties will not be affected thereby.” Therefore, whether a child being acknowledged after his putative father’s death has right to inheritance becomes a question, and there is no clear answer in the Civil Code.
Regarding whether Article 1069 a limitation on inheritance, the Supreme Court has not made a clear judgment until 2011. The determination held that, in principle, an illegitimate child acknowledged after his father’s death has no right to inheritance. The reason is that succession has already opened with the death of the deceased. Although the affiliation has a retroactive effect, the property right that other heirs acquired will not be influenced. However, if part of estate is possessed by an unauthorized person when succession opening, the child acknowledged after the deceased’s death can still claim his right to estate on that part.
Scholars in Taiwan have not reached consensus on this problem. Some argue that the other heirs have already acquired the estate and therefore the rights should not be affected. On the other hand, some claim that the other heirs are not “the third parties” in Article 1069 according to legislative record, and still others claim that we should perform another revise to solve this problem.
In Japan, Article 784 of Civil Code is similar to Article 1069 in Taiwan. However, most Japanese scholars claim that “the third parties” does not include the other heirs. The reason is that Article 910 provides ” In the case where a person who becomes an heir through affiliation after the commencement of inheritance intends to apply for a division of the inherited property, if other heirs have already divided the inherited property or made another disposition, he/she shall only have a claim of payment for value.”
Although the situation in Japan and in Taiwan is not exactly the same, as result, illegitimate children cannot acquire estate or obtain less estate than legitimate children after affiliation. Is this discrimination difference still reasonable in today''s society? On account of the similarity of population structure (the proportion of illegitimate children) and legal effect in these two countries, this research attempts to analyze illegitimate child’s right to inheritance by comparative legal studies and make suggestion on interpretation. This study is predicted to help to form stable policy on marriage and children. Besides, this research will use Japanese law for as comparative method, therefore it may promote the intercommunication between Taiwan and Japan.
Subjects
非婚生子女
繼承權
繼承人
認領
死後認領
第三人已得權利
Type
thesis
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