論「自幼撫養為子女者」之收養

Discussion on the Adoption under ＂Upbringing since Childhood＂

民國74年修正前之民法第1079條規定「收養子女，應以書面為之。但自幼撫養為子女者，不在此限。」其但書規定究應如何解釋，向來為學說實務爭議之焦點。本文整理本條規定之立法沿革及相關學說見解，並分析近年實務之案件類型與法院態度後，提出筆者對於收養之性質與要件之淺見。本文贊同最高法院103年台上字第2449號之判決意旨，認為「自幼撫養為子女者」僅無庸作成書面，惟收養終究為契約行為，仍應由法定代理人代為或代受被收養之意思表示，以維持收養之性質為契約之理論上之一貫性，且能徹底避免偷抱他人子女者反得主張養親子關係之成立，造成對本生父母不公平之結果。是以，無法定代理人之代理時，收養應為無效，此時，如何保護長期信賴親子關係存在之養子女？106年台上字第2743號判決依經驗法則推定收養已經法定代理人之代理、採舉證責任之轉換減輕被撫養人之舉證責任，以保障養子女之權益。此外，本文認為舊法下被自幼撫養為子女者，亦得對有反對主張者，主張民法第148條之權利濫用，而由法院依個案審酌一切情狀判斷之。

Before the amendment in 1985, Article 1079 of the Civil Law stipulated that ＂adoption shall be made in writing, excluding the upbringing since childhood.＂ However, the explanation for this stipulation has always been a controversial issue in theory and practice. After sorting out the legislation evolution of the stipulation in this article and the opinions of relevant theories, as well as analyzing the types of practical cases in recent years and court attitudes, this paper proposes some opinions on the nature and essential conditions of adoption. This paper agrees with the decision (Tai Shang Zi No. 2449) made by the Taiwan Supreme Court in 2014, considering that only ＂upbringing since childhood＂ does not need to be in writing; after all, adoption is a contract and the declaration of intention on being adopted shall be still represented or accepted by a legal representative on behalf of the adopter, in order to maintain consistency between the nature of adoption and the theory of contract, and to avoid unfair results upon the biological parents under the situation that those who steal others' children claim the establishment of the relationship between adoptive parents and adoptive children. Therefore, adoption shall be explained as invalid in the case of no representation of any legal representative. At this point, how does the legal system protect the adopted children who have a trusted parent-child relationship for a long time? The decision (Tai Shang Zi No. 2743) made in 2017 according to the empirical law presumed that adoption has been represented by legal representatives and stated that the transfer of burden of proof has relieved the dependents' burden of proof, so as to protect the adopted children's rights and interests. This paper also believes that upbringing since childhood under the old law are entitled to appeal to the abuse of Article 148 of the Civil Law against the opponents, and that the court shall make a decision by considering all circumstances on a case-by-case basis.