子女稱姓之現代化

The Modernization of the Surname of Child

子女之稱姓，傳統社會為達傳後之目的，婚姻型態分為嫁娶婚與招贅婚，前者所生之子女，從父姓，反之，後者所生之子女，從母姓，但夫妻得約定從父姓者，從其約定。嫁娶婚又分娶妻與納妾，二者所生之子女，均為婚生子女，從父姓。至於因私通或勾合所生之子女為姦生子，應從母姓。民國19年制定之親屬編，因受近代歐陸男女平等思想與獨立人格觀念的影響，子女之稱姓呈現新舊思想的折衷。民法第1059條規定：嫁娶婚之子女，從父姓（第1項）。招贅婚之子女，從母姓，但約定從父姓者，從其約定。違反男女平等原則之納妾行為被刪除，但傳後為目的之招贅仍然存在。民國74年親屬編全面修正一次，但仍有違男女平等，而於民國96年又大幅度修正民法第1059條之規定，即子女出生登記時，夫妻得以書面約定子女從父姓或從母姓。子女未成年時，父母得以書面約定子女改從父姓或母姓。子女成年時，自行改從父姓或母姓，尤其有法定原因時，父母之一方或子女得請求法院，為子女之利益，改從父姓或母姓。此規定也適用於非婚生子女與養子女之姓氏。民國97年因民法對子女之稱姓，夫妻發生爭議時，應如何解決，未為規定，故戶籍法第49條先於民法規定，應由夫妻於戶政事務所抽籤決定子女之姓氏，應從父姓或從母姓。民國99年立法院也在民法第1059條規定，夫妻對子女之從姓未約定或約定不成時，以抽籤決定。但對於非婚生子女或養子女於發生子女從姓有爭議時，立法者並未如婚生子女，以抽籤決定，顯然此為立法上之遺漏，宜盡速補正。

To ensure the family surname will be carried to future, the marriage type can be categorized into two types to rule the surname of the children. The first type is wedlock marriage and the second type is uxorilocal marriage. The surname of the children should follow father’s surname in the first type and should follow mother’s surname in the second type or to follow father’s surname if there is a predetermined agreement by the parents. The wedlock marriage can also be classified into two types: wifemarriage and concubine-marriage. The child born under wedlock marriage will carry father’s surname. As for the child born out of wedlock marriage will be treated as illegitimate child and should follow mother’s surname. As the family law of the Civil Code legislated in 1930 was influenced by the concept of equality of the sexes and independent character, the surname of the children was actually a compromise between new and old thoughts. In article 1059, child under wedlock marriage should follow father’s surname (item 1) and child under uxorilocal marriage should follow mother’s surname or to follow father’s surname if there is a predetermined agreement. The concubine-marriage was removed as it goes against the rule of equality of the sexes; however, the uxorilocal marriage was still left for the purpose of carrying family surname to the future. In 1985, the family law of the Civil Code went for another revision but the contents still did not fully adopted the concept of equality of the sexes. Later in 2007, article 1059 of the family law was substantially revised and regulated: “Parents should agree in writing before filing the child’s birth registration regarding if the child assumes the father’s or mother’s surname.After filing the child’s birth registration and prior to the child reaching maturity, the parents may in writing change the child’s surname to either the father’s or mother’s.Where the child reached his/her maturity, he/she may change his/her surname to either the father’s or mother’s surname.Either the parents or the child can petition in the interest of the child for a judicial declaration to change the child’s surname to either the father’s or mother’s surname.” Above regulations also apply to the surname of child out of wedlock marriage and adopted children. The family law in 2008 failed to regulate the rules regarding how to settle the surname issue if the parents had different opinions. Consequently, before the revision of the Civil Code, the article 49 of Household Registration Act regulates that: “the applicant can decide the child to be registered with the father or mother's surname upon taking a draw.” In 2010, the Legislative Yun made more revision of the article 1059 of the Civil Code by stating that: “Parents should agree in writing before filing the child’s birth registration regarding if the child assumes the father’s or mother’s surname. Without such an agreement or when the agreement cannot be made, the surname should be determined by drawing lots at the Household Registration Office.” Nevertheless, if there is any surname disputes for the child born out of wedlock or adopted child, the legislators failed to add on the “determined by drawing lots” rules as applied to the legitimate child. This negligence of the law should be corrected as soon as possible.