身分關係的習慣與法律發展之初探

An Exploration of Customs Regarding to the Family and Succession Relations and the Development of the Law

本文係以身分關係的習慣與法律發展為初探。首先就「身分」、「關係」、「身分關係之習慣」等為定義。又，參考印度、韓國、南非、希伯來人及臺灣等經驗，以瞭解社會變遷與身分上習慣適用的不同型態。再者，研究臺灣身分關係的法律發展、臺灣習慣上身分關係之型態。並為實務案例相關問題的研析，如「年幼養媳或媳婦仔」、「無頭對媳婦仔」、「婿養子」、「死後立嗣子孫」等。進而提出粗淺看法及建議，或可供修法或立法政策的參考；展望法律與社會發展俱進，衡平相關利益、以維持良善、公平、和諧安定的身分秩序。

This article aims to the exploration of customs regarding to the family and succession relations and the development of the law. First is to define the “kinship status,” “relations,” and “customs regarding to the kinship (family and succession) relations” etc. Second is to refer to India, South Korea, South Africa, the Hebrews, and Taiwan experiences for understanding different aspects of applying the customs regarding to family and succession relations in the changing societies. Furthermore, this research examines laws related to this issue in Taiwan after October 25th, 1945, as well as a variety of customs (mainly from 1895 to 1945). And a survey of related cases are analysed, such as “A minor raised to be the future daughter-in-law,” “A minor raised to be the future daughter-in-law, whose future husband or husband die in early age or soon after their marriage,” “Adoptee as son-in-law,” and “Heir adopted after the death of the decedent” etc. To keep the order of good, fair, and stable kinship relations, this research proposes new measures for legal amendment and legislative policy; and seeks a balance between the related interests in the evolving laws and changing societies.