郭書琴

中文摘要

當承擔實質日常照護年老父母的人，並非法定繼承順序中的血親或配偶；特別是當法定繼承人與未來之被繼承人關係不良、彼此爭吵、或多年不曾聯絡，在這種狀況下，未來的被繼承人，亦即老年父母，除享有國家給予之公法之社會福利制度之外，他們也是民法親屬編所保障之受扶養權利人，則得以如何保障他們的權利？當被繼承人在年老時還存有一些資產，他/她將如何運用這些資產去照顧自己人生中的最後一段日子？在此種情形下，被繼承人是否可以透過民法第1145條第一項第五款之「繼承權喪失」方式，藉以「要求」、或「換取」繼承人的照顧？民法繼承制度在這樣的現實考量下，如何在個案的司法救濟上，保障被繼承人的受扶養之權利、並督促繼承人盡其扶養義務？本文將以民法第1145條第一項第五款之「繼承權喪失」為主旨，探討現行民法繼承編之相關規範，應如何調和被繼承人與繼承人間的衝突與權益。在研究方法論上，本文以老年之法律與社會（law and society）角度、輔以「家的物質性基礎」理論，從具體案例，特別是從實體法（民法親屬編和民法繼承編），和程序法，亦即成年子女與老年父母的衝突與紛爭解決角度，分析台灣相關司法實務判決，並以美國相關法制為比較法文獻，提出具體立法政策建議與本文研究結論。

Forfeiting the Inheritance and Ill-Treated Clauses

Shu-Chin Grace Kuo

abstract

Why elder parents take legal action against their adult children for forfeiting children‘s inheritance right? What are social-legal factors in such kind of disputes? How to apply the idea of intergeneration justice within family particularly when elder parents and adults children all suffered from long-time inherited family trauma? In this paper, I propose to engage social-legal studies, law and society and family law to answer the above questions. In the conflicts between adult children and their elder parents, I found there are three characters hidden in such civil cases. At first, there are vertical and horizontal conflicts within family members. Vertically, elders and young adults failed in communication for long time. It leaded horizontally conflicts between adult children. Secondly, most of cases were happening non-typical families that meant elder parents divorced or remarried, and they did not pay for supporting fee to the children age less than twenty. Third, economical weakness and illness were the major issues when elder parents take legal action again their adult children. However, the adult children also suffered the similar difficulties. Facing the specific kind of family dispute between elder parents and adult children, I focus on Civil Code Article 1145 I (5) “Ill-Treated Clauses” to analyze the three typical cases using the theory of “Materiality of Family.” According to “Materiality of Family,” biological blood relation is not the only connection to bind the adult children and their elder parents. In this paper, I will demonstrate how the financial arrangements become the more critical issues for all family members that generate the long time disputes. In case 1, I bring the issue between the oldest son and his mother both disagree with each other for a long time particularly after the father die. The arrangement of family property is the core problem between the oldest son and his mother. Therefore, the mother made her will to forfeiting the oldest son’s future inheritance right. The son takes this declaration as an unfair and illegal action. The mother and the son filed several suits to declare each party’s legitimacy. In case 2, I bring the third generation into the analytical frame of this paper. When the adult son does not fulfill his filial duty that leads to the grandson lose his inheritance right. For the grandson, is it fair or unfair? Should we consider more about biological relation rather than actual living condition? Or should we put on more weight on substantial affections rather than the biological or legal titles? In case 3, I bring the elder day-care issue that relates to how to identify who is the legitimated person receiving the future inheritance right. In this kind of dispute, the receiver should also take the legal obligation to pay the bill to the day-care center. I will both pay attention to both the substantial and procedural aspects of law in this certain kind of disputes among the adult children and their elder parents. In the end, I provide the substantial contribution both for future legislation and policy-making.