| 英文摘要 |
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.
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