變更子女姓氏與子女利益之研究─以台灣地方法院裁定為探討;A Study of Changing the Children′s Surname and the Children′s Interests—— Rulings of the Taiwan District Courts

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Title:	變更子女姓氏與子女利益之研究─以台灣地方法院裁定為探討;A Study of Changing the Children′s Surname and the Children′s Interests—— Rulings of the Taiwan District Courts
Authors:	劉人鳴;Liu, Jen-Ming
Contributors:	法律與政府研究所
Keywords:	姓氏;子女利益;surname;interests of child
Date:	2020-01-16
Issue Date:	2020-06-05 17:13:58 (UTC+8)
Publisher:	國立中央大學
Abstract:	於二十世紀開始，福利國家逐漸受到「國家干涉主義」(state paternalism)的影響，認為國家不應讓家庭完全的享有自治。在「國家干涉主義」脈絡下，聯合國、歐美各國開始將「兒童最佳利益」作為親子法所應遵循的基本原則。台灣亦在1996年9月25日修正民法親屬編時改採以「子女為本」的親子法。於現行民法親屬編中，不乏有以「最佳利益」做為判斷標準者，本文選擇以「變更子女姓氏」之「子女利益」做為研究，原因在於「姓名」權利屬於個人人格權的一種，且姓名的存在，是國家承認個人存在的第一步，予其享有權利、義務的第一步。本研究探討民法第1059條第1項於2007年修法開放讓父母自行約定子女出生從姓，2010年子女出生從姓協議不成或未約定以抽籤決定，是否影響從父姓或從母姓比例？本研究結果顯示，其雙方約定且從父姓者仍佔多數，但是從父姓者比例已從2012年起是有下降的情形。雙方約定且從母姓者雖佔少數，但是，「從母姓」者比例從2012年起是有上升的情形；抽籤決定且以從母姓者為多，從父姓者為少。另外，本研究探討2010修正民法第1059條第2、3項、民法第1059-1條第1項、第1078條第2項變更從父姓、母姓，是否影響從父姓或從母姓的比例？本研究發現婚生子女變更為父姓或母姓以「改為母姓」者佔多數，養子女變更為養父姓或養母姓以「改養父姓」者較多。最後，本研究比較地方法院子女更改姓氏的裁定書中，四種評估者如何考量「為子女利益」，共有七個研究結論。第一個結論：整體來看，比較准予案件和駁回案件於子女最佳利益之關鍵理由:准予案件會出現的關鍵理由是偏向正向或是中性面；駁回案件會出現的關鍵理由是偏向負向面或是中性面。第二個結論為社工(或家調官)所考量「為子女利益」的指標傾向以對兒少意義係建立新生活、變更姓氏意義後兒少能與聲請人家庭相處上更為融洽與緊密二者為主。第三個結論為有社工(或家調官)評估之法官所考量「為子女利益」傾向以未成年子女尚未了解姓氏的意義、未成年子女認為變更姓氏後對其未有影響、受到外祖父母與母親影響、讓母不再因子女從父姓而再聯想到前配偶(伴侶)與取得家族親屬的經濟支持等五個面向。第四個結論則是未有社工(或家調官)評估之法官所考量「為子女利益」係以未成年子女願意變更姓氏為主要之考量，居四評估者之冠。第五個結論則是聲請人所考量「為子女利益」係以兒少認為變更姓氏意義係對於聲請人家庭的認同感與歸屬感、能夠對於同儕有所解釋、受到其他同住家屬期待、受到其他(同儕、老師)影響、父或母認為無庸耗費心力去向他人解釋姓氏、非聲請人一方對於對成年子女長期鮮少聞問、未成年子女變更姓氏對於非聲請人一方未有影響(因為已經有其他同姓子女)、一方受到通緝、交友複雜等眾多面向。第六個結論則是聲請人與專業人士在「為子女利益」上的重視層面有所區別：專業人士較重視變更姓氏與否對於聲請人家庭的影響上，而聲請人則較重視家庭安全議題。第七個結論則是從變更為母姓遭駁回案件或變更父姓為准予案件之理由中係未見有性別不平等意識之內涵。 ;Abstract Starting from the twentieth century, the welfare states were gradually influenced by the concept of "state paternalism", which believed the state should not allow families to be totally autonomous. In the context of “state paternalism ", the United Nations, European and American countries have begun to adopt "the best interests of children " as the basic principle of Civil Code. Taiwan also adopted a "children base” Civil Code when amending the Family Law of the Civil Code on September 25, 1996. Inside the current Family Law of the Civil Code, there are many articles adopt the "Children’s best interests" as the criterion. This study chose to examine the principles of "children′s interests" in changing the child′s surname, because the right of a surname is a type of personality rights. The existence of a surname is the first step for a country to recognize an individual′s existence and to grant him/ her rights and obligations. This study examined the influences of the amendments of Paragraph 1 of Article 1059 of Civil Code in 2007 to allow parents to agree on the child’s surname and in 2010, to allow parents to draw a surname, if the child’s surname was not agreed upon, on the national statistics of the newborn’s surnames. Our results showed that the majority of the newborns’ surnames were still agreed upon according to their father′s last names, but the proportions of the newborns using father′s surnames have declined since 2012. Although the mother′s surname agreed upon by both parents only accounted for a minority, but the proportions of using mother′s surname have increased since 2012. The proportions of drawing a surname for the newborns resulted more from mother′s surnames and fewer from the father′s surnames. In addition, this study examined the influences of the amendments of Paragraph 2 and 3 of Article 1059, Paragraph 1 of Article 1059-1, and Paragraph 2 of Article 1078 of Civil Code in 2010 on the proportions of children’s surnames from fathers’ or mothers’ side. This study found that the majority of children born in wedlock changed to their mother′s surnames later in life, and the number of adoptive children changed to adoptive father′s more than to adopted mother′s surnames. Finally, this study compared the evaluations of “the interests of children" among four different types of people appeared in the court documents, which resulted in the following seven conclusions. The first conclusion is by comparing the key reasons for granting and dismissing a case in the best interests of the child: overall, the key reason in a granting case favored positive or neutral reasons; the key reason in a dismissing case tended to be negative or neutral reasons. The second conclusion is: social workers (or family matter investigation officers) tended to use two criteria as “the interests of children”, i.e., the meaning of changing the surname for children is to establish a new life ; children can get along with the petitioner’s family more harmoniously and closely. The third conclusion is: judges assisted by social workers (or family matter investigation officers) tended to evaluate “the interests of children” more as the following five criteria, i.e., the minor child has not yet understood the meaning of the surname, the minor child thinks that the change of the surname has no effect on him/her, the child is influenced by the grandparents and the mother, the mother no longer want to remind of the child’s father from the father′s surname, and the child can receive financial support. The fourth conclusion is: judges who were not assisted by a social worker (or a family matter investigation officer) considered “the interests of children” predominantly on one criterion, i.e., the minors’ willingness to change their last names, to be the top of four evaluators. The fifth conclusion is: the petitioner’s considerations of “the interests of children” were many, i.e., the child′s perception that changing the meaning of the surname is a sense of identity and belonging to the petitioner ′s family, the child can explain to the peer, the child is expected by other family members, the child is influenced by others (peers, teachers), the father or mother thought it was unnecessary to explain the surname to others, the non- petitioner ′s side has rarely cared about the grown up children for a long time, the change of a minor’s surname has no effect on the non- petitioner ′s side (for there are other children with the same surname), and the other party is wanted by law, and has complicated circles and friends. The sixth conclusion is: the petitioner and the legal professionals were different in their evaluations of “the interests of children”, i.e., the legal professionals emphasized more on the influence of changing the surname on the petitioner’s family, while the petitioner emphasized the safety issues of the family. The seventh conclusion is: whether the reasons for the dismissed cases of changed to the mother′s surname or the approval cases of changed to the father′s surname, there seemed no gender inequality reasons written in the court documents.
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