論基於婚姻所生父子關係之生母否認權與行使上限制──我國民法第1063條第2項與歐陸主要規範之比較觀察

The Disavowal Right of Birth Mother to the Marital Paternal Filiation and Its Restriction: The Comparative Observation of Art. 1063 para. 2 of the Civil Code of Taiwan and Main Legislations of Continental Europe

就基於婚姻所生之法律上父子關係，於子女與夫之間不具血緣連繫時，一九八五年民法於第1063條第2項賦予生母否認權，令其得推翻此一既存法律上父子關係。惟生母否認權於行使上卻不受限制，將影響子女保有法律上父子關係之利益。特別是夫與子女於其未成年期間內曾有扶養、保護與教養之實際互動關係時，子女經此即對於法律上父子關係之存在形成心理、情感上認同，而就其存續具有人格上利益。由於生母並非法律上父子關係之當事人，且生母經由行使否認權所取得之自身利益本屬有限，故立法政策上應就生母否認權導入行使上之限制，而且應以「符合子女之利益」作為限制事由，以兼顧法律上父子關係之安定性。如不能導入此等限制，立法政策上毋寧刪除生母否認權，以避免生母經此所得之利益及血緣真實追求強度之增強，與子女所受之不利益間發生失衡的結果。

Art. 1063 para. 2 of the Civil Code confers birth mother the right to disavow the marital paternal filiation when there is no connection of parentage between husband and child in 1985. Therefore, the legal paternal filiation can be overturned under such regulation. After the introduction of the disavowal right of child in 2007, the function of mother’s disavowal right to protect the interest of the child is reduced. Yet, the disavowal right of mother can still increase the possibility to pursuit the true connection of parentage. In additional mother can solely bear and exercise her parental right and responsibility. Therefore, mother still has interests to disavow the paternal filiation. However, the child’s interest to preserve legal paternal filiation could be jeopardized since there is no restriction other than time limitation imposed on mother’s disavowal right. The child would have such personal interest especially when husband and the child have actual interactions, such as support, protection or upbringing during childhood, which form psychological and emotional recognition of the child to the legal paternal filiation. In additional, the minor child will suffer from personal and financial disadvantages when paternal filiation is overturned and, consequently, support, protection or upbringing from husband is ceased. While the child’s interest is jeopardized through mother’s disavowal, the disavowal right of mother should be excluded on the basis of evaluation of interest, since mother is not a party to such paternal filiation and acquires limited benefit from exercising her disavowal right. Therefore, the restriction of mother’s right of disavowal should be introduced de lege ferenda so that mother could only exercise her disavowal right when such exercising meets the interest of child. The stability of paternal filiation can therefore also be achieved. If restriction of mother’s right of disavowal is not introduced, it would be more satisfactory to remove the mother’s right of disavowal de lege ferenda to prevent the imbalance between acquired advantage of mother, advantage of recovery of true parentage and disadvantage of children brought about by mother’s disavowal.