論兩岸有關被繼承人骨灰安置權問題之研究

Study on the Cross-Strait Administration of Settlement Right of Heir’s

生老病死苦，乃人身之五劫也。既得為人，生於世間，均無法脫離生老病死苦之五劫。自古以來，有生便有死、有得即有失、有因必有果，凡事皆有其因果循環。事實上人活在世間，紛紛擾擾，千頭萬緒，可謂「剪不斷、理還亂」。惟只要是身為人，則總有一天仍將走向死亡之路，此時，即發現當人成為遺體或骨灰之後，可不可以作為權利標的之客體？其法律性質為何？就此，兩岸學者間均有各自之見解以及其立論之基礎。是以，當被繼承人之遺體處理權甚或是其後之骨灰安置權，於其繼承人間產生意見分歧，且協議不成或無法協議時，僅能走向訴訟一途。然而，無論結果如何，終究是無法盡如人意，亦恐難以三言兩語下此定論，至少必須從法理基礎探究該爭執事項，以資解決。

"Birth, aging, sickness, death, and suffering are five kalpas of everyone. We couldn’t get rid of them since we were born as human beings. As a man lives, so shall he die. Taking the good with the bad. Every cause has an effect. What goes around comes around. Life is full of confusing, disordering and thousands of confused thoughts. You can say too much to handle again. Nobody’s life isn’t step by step to be died. At the meanwhile, can we take ashes and remains as subject-matter object. What is the nature of law? For this matter, cross-strait scholars have different opinions and lines of reasoning. Therefore, when successors have disagreements with the discretion of heir’s or even more the settlement right of heir’s ashes. It will lead to litigate when successors neither reach an agreement with each other nor negotiate. However, no matter what the result will be, it will not be entirely satisfactory. And we also couldn’t jump to conclusions in just a few words. In order to solve it, at lease, we have to make a thorough inquiry about this dispute from jurisprudence."