Menschenbild and Constitutional Interpretations

• Main Authors: Tsu-Chieh Lin, 林子傑
• Other Authors: 葛克昌
• Format: Others
• Language: zh-TW
• Published: 2006
• Online Access: http://ndltd.ncl.edu.tw/handle/94981144803789354501

碩士 === 國立臺灣大學 === 法律學研究所 === 94 === For example ,Judicial Yuan Interpretation No.372：The maintenance of personal dignity and the protection of personal safety are two of the fundamental concepts underlying the constitutional protection of the people’s freedoms and rights. Our society expects that the institution of marriage should be protected by preventing domestic violence and by improving mutual respect between spouses. To determine what constitutes “unbearable mistreatment in cohabitation” as provided in Article 1052, Paragraph 1, Subparagraph 3, of the Civil Code, the courts should, case by case, take into account the degree of the mistreatment suffered by the injured party, the levels of education of both parties, their social status, and so on, and determine whether the continuity of the marriage is threatened. If the degree of mistreatment suffered by the injured party goes beyond the encroachments on personal dignity and security that would be tolerated by most spouses, this should be seen as unbearable mistreatment in cohabitation. The Supreme Court’s Precedent S.T. 4554 (Supreme Court, 1934) held that: “although a spouse who has suffered unbearable mistreatment in cohabitation is entitled to ask for a divorce, this does not include cases where the other party temporarily loses control and overreacts to the spouse’s misconduct.” This Precedent, which does not exclude the operation of the abovementioned fundamental ideas and social expectations if the other party’s overreactions threaten the continuity of the marriage, is not in violation of the Constitution.And then,No.554：Marriage and family serve as the foundation on which our society takes its shape and develops and are thus institutionally protected by the Constitution. The root of our marriage system lies in the freedom of personality, with such social functions as the maintenance of the order of human relationships and gender equality, and the raising of children. To insure an enduring and unimpaired system of marriage, the state may of course enact relevant rules to require the husband and the wife to be mutually bound to each other by the duty of faithfulness. The freedom of sexual behavior is inseparably related with the personality of individuals, and every person is free to decide whether or not and with whom to have sexual affairs. Such freedom is, however, legally protected only if it is not detrimental to the social order or public interest as it is so provided in Article 22 of the Constitution. Thus, the freedom of sexual behavior is subject to the restriction put on it by marriage and the family system.What’s the different between this two Judicial Yuan Interpretations？What’s the Justices preconception about“Menschenbild？What does the “Menschenbild ”mean？How to understand “Menschenbild ”？ Why did we have to bring up the subject of “Menschenbild ”？