| Summary: | 碩士 === 國立成功大學 === 法律學系 === 101 === Minors have personality right, the right is under the protection of Article 22 of Constitution. Minors have autonomous right to decide how to dispose their body, so parents, legal representative, governments, and another person should respect of them. However, minors’ physical autonomy should be removed when they have no mental capacity or enough judging ability or their decisions overriding public order and good customs, and their parents have parental rights to make a physical decision for them. In this moment, because minors have no right, the conflicts between minor’s self-determination and parents’ opinions are not a real conflict, so the court has no right to interfere.
Why the parents have right to take part in their children’s physical autonomy, because if minors have autonomous right, the parents have no right to consent. There are only two situations, first, the parents can base on the authority as a statutory agent to decide independently when minors’ autonomous right is be removed. Second, the parents can base on the special law to decide when minors’ have autonomous right.
To protect minors, the government have right to interfere in family autonomy. But the government can’t deprive and abate parents’ parental rights or right to consent without enough reasons and due process. The court can accord to the second paragraph of Article 1086 of Civil Code, where the parents have a conflict of interest with their minor children, the court can appoint a special agent for the children. And according to Article 1090 of Civil Code, where one of the parents has abused his or her rights over their children, the court can suspend all or part of his or her rights to the children. Moreover, when both minors and the parents have right to decide, according to the jurisprudence, with the continued development of the laws, the court can base on the provisions of the second and the third paragraphs of Article 1089 of Civil Code. If there is inconsistency between the parents and their minor children in the exercise of the rights in regard to the important events of the minor child, the court must judge the event in accordance with the best interests of the child.
As mentioned above, how to resolve the conflicts between the minors’ self-determination and their parents’ opinions. Under special law, this thesis represents that, in low risky and low invasive physical-disposal behaviors, explaining the provisions of the second paragraphs of Article 63 and 64 of Medical Care Act with paradox of value, and minors who have mental capacity can decide how to dispose their body independently in the range of public order and good customs and the best interest of the child, and parents have no right to interfere. This kind of conflict is not a real conflict, so the court has no right to interfere. However, in high risky and high invasive physical-disposal behaviors, according to Medical Care Act, the minor’s and the parents’ consent is needed. This kind of the conflict between minor’s physical autonomy and the parents’ opinions should be a real conflict, so the court can interfere in this conflict.
Non-regulated by special law, this thesis represents that, in low risky and low invasive physical-disposal behaviors, minors who have mental capacity consent and the consent is allowed by public order and good customs, then minors have right to make a decision independently, and the parents have no right to interfere. However, in high risky and high invasive physical-disposal behaviors, minors have no mental capacity, so the parents have right to decide for their children. This kind of the conflict between minor’s physical autonomy and the parents’ opinions is not a real conflict, so the court can’t interfere in this conflict.
There are the conflicts between minors’ and the parents’ opinions. While judging the best interest of the child, the court should base on minors’ and the parents’ opinions, it means that the court can’t judge at discretion instead of minors’ and the parents’ opinions, and the court must exam the best interest of the child. In every case, the child’s best interests are to be “a primary consideration”.
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