涉外成年人監護事件之國際管轄權及外國法院成年人監護裁判之承認──我國法與海牙公約之比較研究

International Jurisdiction on Adult Guardianship Matters and Recognition of Foreign Adult Guardianship Measures: A Comparative Study on Taiwanese Law and the Hague Convention

有鑑於全球化之進展及人口老化之加劇，國際成年人監護法之重要性隨之增加。在我國，關於涉外成年人監護事件之國際管轄權，得否及如何依涉外民事法律適用法第 12 條、第 56 條、家事事件法第 164 條第 1 項等條文及其他管轄規定判斷其有無，不無疑問。又關於外國法院成年人監護裁判之承認，應如何解釋適用家事事件法第 97 條所準用之非訟事件法第 49 條，亦有待釐清。上開問題之解決，在身心障礙者權利公約具有國內法律效力之背景上，尤應取向於尊重欠缺充分判斷能力成年人之固有尊嚴、自主決定與個人自立的基本原則，以及保障平等享有法律能力之要求。為此，本文乃參考合致於身心障礙者權利公約意旨所設計之海牙成年人保護公約，一面檢討向來我國學說、實務見解，一面嘗試論證我國國際成年人監護法之應有內涵。

Given the — in spite of the COVID-19 pandemic — ongoing globalization and population aging, the importance of the international adult guardianship law has been increasing. In Taiwan, as regards the international jurisdiction on adult guardianship matters, questions of whether and how Art. 12, 56 of the Act Governing the Choice of Law in Civil Matters Involving Foreign Elements as well as Art. 164(1) of the Family Act and other related provisions, such as Art. 3 of the the Non-Contentious Proceedings Act, apply for these matters need to be dealt with. In addition, as regards the recognition of foreign adult guardianship measures, questions around how Art. 97 of the Family Act in connection of Art. 49 of the Non-Contentious Proceedings Act are to be interpreted also require further research. In search of appropriate answers to those questions, specific attention has to be payed to the influence of the Convention on the Rights of Persons with Disabilities, which has according to Art. 2 of the Act to Implement the Convention on the Rights of Persons with Disabilities domestic legal status. The interpretation and application of the mentioned domestic laws should namely come in accordance with the fundamental principles of respect for inherent dignity, individual autonomy including the freedom to make one’s own choices and independence of persons of the vulnerable adults, while assure at the same time that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. To this end, this article will first conduct a comparative study on the Hague Convention on the International Protection of Adults, which is complementary to the former Convention. On the basis of the comparative study, it will then overview the legal opinions taken in the literature and the case law, trying to formulate the guideline for operating the international adult guardianship law.