I. Progress of the draft Implementation Law for the Judicial Yuan Interpretation NO.748
The Executive Yuan Council adopted the draft Implementation Law for the Judicial Yuan Interpretation NO.748 prepared by the Ministry of Justice on February 21, 2019, and the draft will be submitted to the Legislative Yuan for deliberation.
According to the Ministry of Justice, pursuant to the 12th referendum proposal (“Do you agree to safeguard the right of two same sex individuals to live together permanently in formats other than the marriage provisions of the Civil Code?”), which was adopted on November 24, 2018, and to Article 30 of the Referendum Law, if a referendum proposal is adopted, the Executive Yuan is required to prepare the law relating to the referendum initiative pursuant to the principle of legislation in three months and submit the same to the Legislative Yuan for deliberation.
With respect to the current progress of the draft, which is the legal revision reflected by the Implementation Law for the Judicial Yuan Interpretation NO.748, since the draft should be completed by May 24, the DPP caucus at the Legislative Yuan made a proposal to submit the draft directly to the second reading during the plenary session at the Legislative Yuan on March 5 this year. However, facing strong opposition from the KMT and People First Party’s caucuses, the proposal was returned to the Procedural Committee for reintroduction. When both sides were at a deadlock, a vote was taken, and the proposal made by the DPP caucus prevailed. As a result, the draft will be submitted to the second reading directly, and the DPP caucus will be responsible for organization and negotiation.
It should be noted that the Judicial Yuan Interpretation NO.748 requires relevant agencies to complete the revision or formulation of relevant laws pursuant to the gist of this interpretation within two years after the promulgation date of the interpretation. If the revision or formulation of relevant laws is not completed within the period, two same sex individuals seeking to form the above relationship of living together permanently may register their marriage with the household agency by submitting a written document signed by at least two witnesses pursuant to Chapter II (Marriage), Part IV (Family) of the Civil Code. Therefore, if the Legislative Yuan cannot complete the above legal revision by May 24 this year, two same sex individuals may register their marriage by directly applying the provisions of the Marriage Chapter of the Civil Code.
II. Contents of the draft
According to Premiere Tseng-Chang Su of the Executive Yuan, the Interpretation NO.748 rendered by the Council of Grand Justices has clearly indicated that “two same sex individuals” should receive “equal protection in terms of freedom of marriage.” Therefore, the draft of the dedicated law proposed by the Executive Yuan protects the freedom of same sex marriage. He particularly stressed that the Executive Yuan Council will set a historical record for this giant leap forward together. As the supreme administrative agency of this country, the Executive Yuan has to conduct administration pursuant to law, respect the results of the referendum and comply with the interpretation rendered by the Council of Grand Justices. Therefore, the Executive Yuan will not revise the Civil Code, and the provisions concerning marriage and couples in the Civil Code will not be changed in any way. Different parties had their own insistence and arguments concerning the title of the designated law during this period, and the title of the dedicated law proposed by the Executive Yuan is the “Implementation Law for the Judicial Yuan Interpretation NO.748,” which was adopted by the Executive Yuan Council. It is hoped that the legislation will be completed by the Legislative Yuan as soon as possible.
According to the Premier, it is expected that there will still be disputes in society against this bill. However, he hoped that same sex individuals can wait a little longer. Even though the development is not quite what they have expected, still the giant leap together will gradually lead to a bright future. Progress requires a step-by-step approach and cannot be achieved overnight or at one time. The society is urged to be patient and tolerant. Tolerance to others translates into tolerance to yourself. Perhaps, friends around you are waiting for others to relinquish their insistence. Both heterosexuals and homosexuals are in the same country, the same homeland and the same world. Everyone should be respected and treated equally. The people are urged to be tolerant of, and kind to, each other so that Taiwan can be a country where the people mutually respect and be kind to each other.
Article 1 of the draft points out that the objective of the legislation is to allow two same sex individuals to form a permanent intimate and exclusive bonding relationship for the purpose of living together so as to achieve equal protection of the freedom of marriage. The marriage age under Article 2 and the formal requirements under Article 3 of the draft reference Articles 980, 981 and 982 of the Civil Code respectively where the marriage age is 18, and the marriage between individuals under the age of 18 requires the approval of their legal representatives and should be conducted in writing signed by at least two witnesses and registered by the parties to the marriage with the household agency concerned.
In addition, the parties to the relationship are inheritors to each other and enjoy rights associated with married couples. The property system and the adoption of children born by other party are both governed by the property system for married couples and adoption provisions under the Civil Code, and the grounds for applying to the court to terminate a marriage is regulated by Article 17 of the draft, which references Article 1052 of the Civil Code.
The draft is highlighted below:
1. Legislative objectives of this law(Article 1 of the draft)
2. Definition of same sex marriage relationship(Article 2 of the draft)
3. Minimum age for forming the relationship under Article 2(Article 3 of the draft)
4. Formal requirements for forming the relationship under Article 2(Article 4 of the draft)
5. Substantive requirements for forming the relationship under Article 2, the prohibition against certain relative relationship, prohibition against guardians and wards under the relationship of guardianship (Articles 5, 6 and 7 of the draft)
6. Nullification and revocation of the relationship under Article 2(Articles 8, 9 and 10 of the draft)
7. General effects of the relationship under Article 2, such as the performance of the cohabitation obligation, decision on domicile, handling of household affairs, sharing of family living expenses and repayment liabilities, etc. (Articles 11, 12, 13 and 14 of the draft)
8. Property effect of the relationship under Article 2(Article 15 of the draft)
9. Termination and effect of the relationship under Article 2(Articles 16, 17, 18 and 19 of the draft)
10. The ability of either party to the relationship under Article 2 to adopt the children born by the other party(Article 20 of the draft)
11. Application of the provisions concerning guardianship under the Family Part of the Civil Code to the parties to the relationship under Article 2(Article 21 of the draft)
12. Support obligations of the parties to the relationship under Article 2(Article 22 of the draft)
13. Inheritance right of the parties to the relationship under Article 2(Article 23 of the draft)
14. Application of provisions concerning married couples, weddings or marriages under the General Part and the Liability Part of the Civil Code and other laws and regulations as well as provisions arising from marriage relationship to the relationship under Article 2(Article 24 of the draft)
15. Remedial procedure for disputes arising from the relationship under Article 2(Article 25 of the draft)
16. Freedom of religion and other rights of freedom, which are not affected by this law(Article 26 of the draft)
17. Effective date of this law (Article 27 of the draft)