論家事事件法中之親屬會議事件－－從實體法之觀點

The Family Council of Family Act - From the Perspective of Substantive Law

於家事事件之種類中，親屬會議事件被規定為丁類事件，屬於家事非訟事件。家事事件法第四編家事非訟程序中，乃設專章規定親屬會議事件。但實體法學者不關心，程序法學者不重視，連官方所出版之參考手冊亦完全漠視它的存在，由此可知，親屬會議事件為家事事件中最被忽略之一環。本文從實體法之觀點研究家事事件法所定親屬會議事件時，發現仍存有諸多問題。有的是立法時未注意實體法已經修正，而仍規定實體法所未規定之事件。有的是未注意家事事件法已將民事訴訟法之所定由親屬會議指定代為訴訟行為人之相關規定予以刪除，而仍將非訟事件法之規定原封不動移植而來，導致條文毫無用武之地。有的是因民法修正後，導致無存在之必要。有的是將親屬會議之職務範圍與法院之職權相混淆，亦有將密封遺囑與有封緘之遺囑混淆不清。此等規定，均有必要加以修正。

In the case of family matters, the family council matters are defined as the category D, the quality of which is family non-litigation matters. Family Act Part IV, so as family non-litigation procedures for family matters, is set up a special chapter for the provisions of family council. However, both of the substantive and procedural law scholars do not put emphasis on family council .It is also completely ignored in the official publication of the reference manual, thus proving the family council matters are the most neglected family matters. This article discusses from the point of view of the substantive law of family council of Family Act, finding that there are still many problems. Some of the problems are setting up the matters of Family Act that do not exist in substantive law without noticing the provisions are changed. Some are not aware of the fact that relevant provisions about designating substitutes for litigant by family council of the Civil Procedure Code are deleted in Family Act, so that transcribe the whole provisions of the Non Litigation Code, which leads to uselessness of the provisions. Some are not necessary to exist owing to the revisions of Civil Code. Others misconceive the authority of family council and court, also misunderstanding the definition of sealed wills. Provisions above are necessary to be revised.