| 英文摘要 |
Taiwan Constitutional Court’s Judgment Xian-Pan 8 of 2022 relates significantly to the ROC Constitution, the Constitutional Court Procedure Act and private international law. The provisions and comments of the 1989 UN Convention on the Rights of the Child and the 1980 Hague Convention on the Civil Aspects of International Child Abduction were referred but not well cited and correctly interpreted. This problem was not found or touched by the dissenting opinions. This paper argues that the child’s right to be heard, rooted in its constitutional basic rights, is a higher norm above the rules requiring evaluation of a child’s will to determine its best interests, and is the possible, if any, reason to rule the relevant court decisions unconstitutional. The child was wrongfully removed and detained. The righteous guardian petitioned in due time in Taiwan’s court for prompt return of the child. However, the Constitutional Court ignored these facts, misunderstood the two cited exceptional clauses of the Hague Convention without mentioning its basic principle, and regretfully delivered the opinions leading to the effects that a wrongful detention lasting long enough may legitimize it. This paper concludes that it is contradictory to protecting the human rights of child and urges it to be corrected. The Supreme Court and lower courts are hoped to look to private international law and to keep away from the misguiding opinions. |
