論遺體在民法教義學體系中的地位－－兼談民法總則相關條文的立法建議

On the Status of Remains in Civil Law Dogmatics: Some Legislative Suggestions on Relevant Provisions of General Principles of Civil Code

關於遺體的法律屬性並未形成一致見解。在法教義學體系中，遺體應當被評價為民法中的“物”。民法總則應在立法上對此予以明確，但不宜採用法律擬制的技術，否則不僅相關條文之間存在矛盾，民法中“物”的概念也將失去其應有的開放性。民法總則中應規定，“遺體亦為物”。進而，作為民法中的“物”，遺體應成為所有權的客體。同時，遺體所蘊含的倫理道德等因素使遺體之上的權益呈現出所有權與人格利益的雙重構造，遺體所有權在內容上應受很大限制。民法總則應在反面通過“死者生前意願”和“公序良俗”對遺體所有權進行限制的同時，從正面對遺體所有權的管理、祭祀、埋葬和捐獻等權能予以明確列舉。

In recent years, there have been many disputes on remains which continuingly trouble the practice. Legal Dogmatics and Legislation hence should provide support to this. However, there is no unanimous recognition on remains' legal attribute. Which needs to be introspected from methodology perspective. In the system of legal dogmatics, remains should be considered as 'thing' in civil law. This should be recognized in the legislation of Civil Code General Rules. In order to avoid conflicts between provisions and remain the openness of 'thing' in civil law, the better way is to stipulate 'the remains is the thing' in Civil Code General Rules rather than to aaply legal fiction directly. Thus, remains should be an object of ownership in civil law. However, given the ethical and moral elements contained in remains, its characteristic reflects both ownership and personality interest. Therefore, the remains' ownership content should be limited. The author suggests to limit the content by (1) applying 'the will of deceased' and 'public order and social custom' and (2) listing clearly the remains' right, including regulation, sacrifice, burial, donation and so on. The concept of remains under Civil Code General Rules hence would be more comprehensive. Basic concepts in civil law dogmatics, such as thing, and ownership, would also be enriched and developed.