The Obligation To Assist In Parentage Test And Its Enforcement In Parentage Actions
| Autor: | Ts-Ning Lee, 李子寧 |
|---|---|
| Rok vydání: | 2012 |
| Druh dokumentu: | 學位論文 ; thesis |
| Popis: | 100 “Family Matters Act”, proclaimed in January 2012, has come into effect in June 2012. Aricle 68 of the said Act legalizes the order for parentage test in parentage actions. Besides, it regulates the requirements of the order, scope of application, protection of procedural rights, etc. This Ariticle has proved to be a significant progress in the legal system of Taiwan, and also corresponds to the global trends. Considering the stong need to supplement the interpretation from perspective of statute and even policy discretion, this thesis, basing on comparative law, aims to elaborate two-level fundamental issues: the obligation to assist in parentage test and its enforcement. The results of this study are summarized as follows: 1. The obligation to assist in parentage test: First of all, the legal basis of the obligation to assist in parentage test in principle goes to Art. 68 in the said Act. The application of the said Article, however, is relatively limited in its scope. In other parentage actions, left out of the scope mentioned above, the legal basis of obligation to assist in parentage test should apply mutatis mutandis to Art. 337, paragraph 1, of Code of Civil Procedure. Secondly, the justification of the obligation at present stage cannot be viewed as sufficient. The justification of such obligation, which includes stronge public interest, needs for truth discovery and protection of the right of proof, should be widened in its scope, that is, the protection of the right to knowledge of genetic descent. As to the doubts over the obligation, claiming it to be an unconstitional infringement of right to bodily integrity and privacy, this study judges the intervention as constitutional restriction on fundamental rights. Thirdly, the content of the obligation should be substantiated to offer enforceable guidelines for judicial practice. Among the requirements of the order, necessity for the parentage test is at the core of the institution. This study suggests that “facts establishing reasonable doubt over parentage”, “best interest of the minor child” and “interest balancing” are essential elements to be valued in the necessity requirement. 2. The enforcement of the obligation to assist in parentage test: When a party fails to comply with the order for parentage test, there is the issue of appropriate enforcement of the order. From the perspective of statutory interpretation, there are only two possible explanations that could be considered for the assessment of appropriate enforcement. One is the general discretionary power to assess evidence, and the other is the discretionary power to impose sanction of taking the truth or facts as proven. The former counters the fundamental idea of truth discovery and trial acceleration in Family Matters Act, and thus is suggested no longer adopted in judicial practice in this study. On the contrary, the latter has necessary character of compulsion and punishment. Furthermore, some criticism against this sanction is more or less a result of misunderstanding. By proper interpretation and operation, the latter legal effect is not neccesarily going against truth. Therefore, the latter should be accepted and adopted in judicial practice, even though parentage action is dominated by “Untersuchungsmaxime”. From the perspective of legislative discretion, the ideal design of institution should contain two different types of enforcement. One is the enforcement that in the first place compels party to take parentage testing, and the other is the enforcement serving as final sanction for failure to comply with the order. Since sanction of taking the truth or facts as proven has already fulfilled the latter function, what our legal system lack is the former. This study believes that fine serving as indirect enforcement is the best choice among all the options available. This conclusion hopes to offer direction for improvement of enforcement system in the future. |
| Databáze: | Networked Digital Library of Theses & Dissertations |
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