A Discussion on the Presumption of legitimacy and Acknowledgement institution

• Main Authors: CHIA-WEI HSU, 許家瑋
• Other Authors: Dong-Xiong Tai
• Format: Others
• Language: zh-TW
• Published: 2012
• Online Access: http://ndltd.ncl.edu.tw/handle/13564161526153760331

碩士 === 銘傳大學 === 法律學系碩士班 === 100 === According to our Civil Law, a child is presumed a legitimate child when his mother impregnate in the existence of matrimony. This legal presumption is because of the social perception, the normal human relationship in the Chinese ethical tradition, to trust the chastity of the wife, and to avoid the difficulty of proof from parent-child relationship. If the child do not have the blood relationship with the husband who is in the existence of matrimony, on the basis of the right of personality and to know that who is his real father. With the direction of Judicial Yuan Number 587 and the amendent of Family law in May 25th ,2007, in some specific conditions and the limited period, our law permit that the husband or wife or child can raise the disavowal of legitimacy. European Court of Human Rights and German law also permit that the right to know one’s blood relationship is one of the human rights, and should be protected by Constitution Law. Today, our Civil Law only permits the husband or wife or child can raise the disavowal of legitimacy. Without the reason that the real father can not raise the disavowal of legitimacy, maybe we can permit the third party to raise the disavowal of legitimacy in some conditions. With the development of society, marriage maybe is not the purpose that they be together. A child is presumed an illegitimate child when his mother is not impregnate in the existence of matrimony. An illegitimate child will not have specific rights and protections without the legal procedure. Acknowledgement is institute for that situation. But in our country, there are many disputes between Judicial viewpoints and theories. Different opinions will affect the right of illegitimate children. This article will dicuss the disputes between Judicial viewpoints and theories. Compulsory acknowledegment amended in 1985 and 2007. The content including that the chid also can be the complainant、amended about the reason for raise a compulsory acknowledegment、cancel the period of time to raise the compulsory acknowledegment, and permit a compulsory Acknowledegment can be raised after one’s dead. In compulsory acknowledegment, it is important to know the blood relationsip of parent-child. Identification of DNA plays the important role in parent-child relationship. Because of its accurate probability, many people refuse to this identification. Family Event Law will go into effect on June 1, 2012. It qualifies the court can determine to make the party to identification of DNA or blood or not. It also has to consider between the human right of the parties and the truth of blood relationship.