死後認領非婚生子女之繼承權限制──評釋最高法院103年度台上字第618號民事判決

The Restriction on the Right of Inheritance of the Child Born Out of Wedlock Acknowledged After the Death of the Natural Father - Comment on No.618 Civil Judgement (2014) of Supreme Court

最高法院對民法第1069條但書，採用目的性限縮之方式，逐漸擴張非婚生子女權益之保障，固然立意良善，可達到個案救濟之效；但最高法院既然作為我國民事訴訟程序之終審法院，即應妥適發揮其統一法律見解之機能。本文嘗試透過分析外國立法例、本國立法沿革、學說及實務見解，提出具有各類案件得通盤適用之判準，一方面維護交易安全，另一方面亦保障死後認領之非婚生子女的繼承利益。隨著立法刪除不當法規並增訂新條文擴大保護非婚生子女之際，未修正之民法第1069條但書與新增訂之民法第1067條第2項應如何解釋，即生疑義，透過立法目的、立法沿革與判決理由，可以發現民法第1069條制定之時並未預見死後認領之情形，存有「法律漏洞」，致使實務及學說見解對於如何平衡交易安全的保護與死後認領之非婚生子女繼承利益的保護產生爭執。本文以為，交易安全保護與對死後認領之非婚生子女的保護並非水火不容，較佳的判準無非是兼顧二者為是。透過第三人之明確界定與處分行為定義之擴大，建立起更完善的交易安全保護，再輔以不當得利的制度，尤其是不當得利中價額償還之規定，可於兼顧交易安全之外，使侵奪非婚生子女應繼分之人返還其無法律上原因而獲得之繼承利益。

In the amendment of Part IV of civil law in 2007, the legislator enact Article 1067II. It enables the child born out of wedlock to file a claim against the father's successors in order to get the status of legitimation after the father's death. However, could the legitimate child, who is acknowledged after his natural father's death, inherit the father's property? The prevailing views of Taiwanese courts held that the successors' entitled portion will not be affected by the effect of retroactivity according to the proviso of Article 1069. Therefore, the child could not inherit the father's property. Recently, the Supreme Court has extended the protection of the right of the inheritance of children born out of wedlock by means of the purpose of restrictive reduction of the Article 1069. It may achieve the effect of case relief. Nevertheless, since Supreme Court is the final procedure in Taiwan, it should properly exercise its function of unifing legal opinion. This paper attempts to analyze the foreign legislation, national legislative evolution, doctrine and practical insights, and proposes that all types of cases can be applied in a comprehensive manner, with a view to maintaining transaction security and protecting the inheritance interests of children born out of wedlock. Through analyzing the legislative evolution, legal purpose, and reasons for the judgment, we can found that the draft of the Civil Law did not foresee the case of the child born out of wedlock filing a claim against the father's successors in order to get the status of legitimation after the father's death. Therefore, there were ＂legal loopholes＂, which led to the conflict between how to balance the protection of transaction security and the children born out of wedlock. This paper believes that the protection of transaction security and the protection of children born out of wedlock are not completely incompatible. The better judgment is nothing more than a balance between the two values. Through the clear definition of the ＂third party＂ and the expansion of the definition of ＂disciplinary behaviors＂, we can establish a better transaction security protection. Futhermore, supplemented by an unjust enrichment system, especially the provision of unreasonable profit repayment, we can both protect the transaction security, and so do the inheritance interests of the children born out of wedlock.