繼受與創造性背離：日治臺灣「家庭法例外論」的全球法律史系譜考察

Reception and Creative Deviation: A Global Legal-Historical Genealogical Study of Family Law Exceptionalism in Colonial Taiwan

本文從全球法律史脈絡考察日治臺灣的家庭法例外論。19世紀初薩維尼的私法體系中家庭法與其他法領域區隔：前者由身分所決定而與民族精神密不可分。後者則是立基於個人意思的普遍科學。當時在歐洲爭論不休的離婚制度則被拒斥。19世紀後半日本民法典論爭中的穗積陳重推崇身分法與財產法區分之德國體系，並稱淡化身分法特殊性之法國法典體例已過時。他誇耀賦予妻子離婚權之日本新民法典的進步性，但也承認身分法保留較多民族特性。包含長子繼承的繼承法則是兼具固有性與先進性，從而適合日本法律進化階段之立法。日治法律人林呈祿將捍衛臺灣特殊性的使命寄託於家庭法──他雖然鼓吹經由日本法來接軌「世界共通」的民商法，但主張家庭法應因民族而異，而選擇地保留臺灣家庭習慣。他運用法律進化概念批判日本長子繼承制乃近似古中國宗祀繼承而終將被時代淘汰的過時制度，並同時強調臺灣諸子繼承之平等性與先進性，從而翻轉了「先進日本法──落後臺灣習慣」之殖民論述。從家庭法例外論的系譜性考察中可發現，家庭法的特殊性並非本質性的存在，而是被不斷建構的人造物。作為行動者的法律人亦非單純承繼者，而是依個別脈絡與策略對於法律概念進行轉換運用，甚至創造性背離的自主行動者。

In the broader context of global legal history, this article explores the discourses surrounding Family Law Exceptionalism in 1920s Taiwan during the period of Japanese rule. The starting point of this genealogical inquiry began in early 19th century Europe, where Savigny's private law system distinguished family law from other legal domains, with the former being contingent upon“status”and intricately tied to national characteristics. In contrast, the latter was grounded in individual autonomy and universal ''science''. True to his conservative stance, Savigny rejected the contentious divorce systems debated across Europe during that time. The next stage was the controversy over the Japanese Civil Code in the latter half of the 19th century. Nobusguge Hozumi championed the German private law system, which emphasized the differentiation between family law and property law. He asserted that the French legal model, which attempted to diminish the distinctiveness of status law, was outdated. In his lecture to the Western audience, Hozumi proudly extolled the progressiveness of the new Japanese family law that granted divorce rights to wives. Meanwhile, he acknowledged that the Japanese family retained a greater degree of national characteristics within the spectrum of“legal evolution,”in contrast with more“cosmopolitan”legal areas in civil and commercial law. The Japanese inheritance system, which encompassed primogeniture, was described as possessing inherent qualities while simultaneously being progressive, making it well-suited for the current evolutionary stage of Japanese society. The last episode was set in 1920s Japan-colonized Taiwan. Lin Cheng-lu, a first-generation Taiwanese legal professional, took family law as the last bastion of defending Taiwan's uniqueness against legal assimilation. While advocating absorbing the ''universally applicable '' civil and commercial laws through Japanese law, he underscored the“local and national”characters in family customs. Amidst the fervent debates on inheritance systems, Lin ''gazed back'' at the colonizers and reversed the dichotomy of ''advanced Japanese law–backward Taiwanese customs'' asserted by the Japanese colonizers. He maneuvered the perspective of social evolution to criticize Japan's primogeniture system as similar to ancient China's ancestral inheritance and therefore destined to be eliminated by prevailing trends. Simultaneously, Lin emphasized the equality and progressiveness of Taiwan's inheritance customs, where each son has an equal share. In this genealogical exploration of the Family Law Exceptionalism, the specificity of family law is not an inherent existence but rather an artificial construction. Neither are legal professionals mere inheritors. Rather, grounded in specific contexts, strategies, and beliefs, they are autonomous actors engaging in the application, transformation, and even creative deviation from their predecessors.