祭祀公業派下權性別平等匡復之法效探究──以憲法法庭112 年憲判字第1 號判決為中心

A Study of the Legal Effects of Gender Equality Restoration under Rights of Successors in the Ancestor Worship Guild－Centered on Constitutional Court Judgment No. 1 of 112

憲法法庭112年憲判字第1號判決將憲法保障之性別平等意旨往前伸入向來依循舊慣習俗決定派下權繼受資格之領域，使繼承事實發生於祭祀公業條例施行前而未被列為派下員之設立人其餘女系子孫得自主決定是否行使所賦予之實體形成權以變更既成法律狀態，自向該祭祀公業請求之日起往後享有行使負擔派下員之權利義務，固然擺脫舊慣習俗之考證爭議並可能增加派下員人數而有利延續祭祀公業，然不免因比較釋字第728號解釋而可能造成實質差別待遇之爭議，也因未對新增實體形成權之內容進行全面系統性闡述而可能轉向對該權利存在與否及其行使效果是否發生之爭執，有待後續觀察。

Constitutional Court’s Constitution No. 1 of 112 extends the constitutional guarantee of gender equality into the area of determining the eligibility for succession to the rights of successors, which has always been based on old customs, so that the remaining descendants of the founder who were not listed as successor before the enactment of the Act for Ancestor Worship Guild may decide on their own whether or not to exercise the right of formation conferred on them in order to change the fait accompli, from the date of the request to the rights of successors. However, it is inevitable that this may give rise to a dispute over the actual differential treatment as compared to the Interpretation No. 728, and that the lack of a comprehensive and systematic explanation of the content of the new right of substantive formation may lead to a dispute over the existence of the right and the effect of its exercise. This is subject to further observation.