A Comparative Study on the Minor Guardianships in Taiwan and Japan

The minor guardianship is a system for the purpose of protecting minor children who have no parent or when both the parents cannot exercise the rights nor assume the duties in regard to them. In Taiwan, the development of minor guardianship is affected by the development of parental rights and adult guardianship due to their similar characteristics with each other. In recent years, the development of family law is affected by “the interests of the child” principle, also, the state intervene more in family business. Therefore, the article would like to study on the current minor guardianship in Taiwan, and find its position in the legal system. First, the article reviews studies on Taiwan’s minor guardianship, which published in the past 20 years, and finds that Paragraph 1 of Article 1094 of Civil Code has been criticized. Paragraph 1 of Article 1094 sets an order for determination of the guardian, and the order might sometimes conflict with the interest of the child. In addition, the article collects 837 rulings related to minor guardianship from 2000 to 2014, and discovers some problems in practice. For example, there are several articles for appointing guardian in different situations, but sometimes even the court is not able to distinguish the difference of each article. Also, lots of cases are related to parental rights suspension issue and minor guardianship at the same time, and sometimes it''s hard for the court to determine whether the situation is that both the parents cannot exercise the rights or abuse of parental rights. In some rulings, the court appoints guardians for the minors without suspending parental rights of their parents, however, this way invades those parents’ rights. Secondly, the article introduces Japan’s minor guardianship, and focuses on the amendment of Japanese Civil Code in 2011. The amendment aimed to solve child abuse problem and promote the protection of child, therefore, it reviewed minor guardianship and parental rights restriction at the same time and raised solutions to problems such as the overburden duties, the pay to guardian, and privacy issue. Also, the amendment allows juridical person to be the guardian, and allows multiple guardians to be appointed in a single case. In addition, relating supporting systems are provided to assist the ward and the guardian. At last, the article compares Taiwan’s minor guardianship with Japan’s from several aspects including features of law amending, parental rights and parental rights suspension, legal order of determining the guardian, and the supervision system. The article finds out that the following three problems are most considerable relating to Taiwan’s minor guardianship. 1. The boundary between minor guardianship and parental rights suspension is ambiguous. 2. The legislation values are inconsistent. 3. The supervision system is insufficient and ineffective. Therefore, the article suggests that the minor guardianship and the parental rights suspension should be reviewed together in the future amendment. In addition, relating articles should be integrated, and the supervision system must be improved. With the improvements mentioned above, we hope once the state intervenes in family affairs, the parent’s rights and the interests of the child can both be protected.