Czech Constitutional Court’s Interventions in Family Law Matters: Protection of Traditional Family

在過去的15年間，捷克憲法法庭發展出複雜的判決處理家庭關係爭議問題。本文分析這些判決發現，捷克憲法法庭對於家庭的定義採取嚴格且保守的見解，將「由異性夫妻組成的傳統家庭」視為唯一的家庭形式，並使這些傳統家庭在法律上享有優於無血緣／非由異性夫妻組成的家庭的待遇。捷克憲法法庭拒絕承認《歐洲人權公約》中家庭生活保護的相關規範適用於不符合憲法法庭認定的「傳統家庭」的生活單位，例如同性伴侶、未婚異性伴侶關係等。本文認為此等做法不僅無視於捷克國內法律的要求，亦有違國際法下不歧視及保護兒童福祉的義務。

In the last fifteen years the Czech Constitutional Court has developed complex case-law dealing with some aspects of the family relations; it adopted a very formalist and conservative approach towards what is considered family and which relationships should be protected as such, being very protective of the institution of legal (strictly heterosexual) marriage and establishing the standard of traditional family as a life arrangement privileged over relationships not established by a blood bond or legal marriage. Targeting same sex couples, unmarried heterosexual couples, and also children, if their family relations were not established by a blood bond or its acceptable imitation, the court promotes traditional family as the only allowed form of family suitable for the protection established by the ECHR as family life. Gradually shifting from and later largely rejecting the ECtHR’s authority in family law matters, the court tolerates other family arrangements only as private life, without the privilege granted to family, disregarding the protection from discrimination and the welfare of children established by the Czech legislation and binding international law. The court also established the “protection of traditional family” as a construction aid which needs to be consulted in family law matters, overcoming the protection of the interests of the child or the suitability or necessity in a democratic society.