2018.12.14
Frank Sun
The Grand Justices of the Judicial Yuan rendered the Shih-771 Interpretation of December 14, 2018 (hereinafter, the “Interpretation”) to point out that the 40-Tai-Shang-730 Civil Decision of the Supreme Court (hereinafter, the “Legal Precedent at Issue”) and the Jie-3997 Interpretation of 1948 from the Judicial Yuan (hereinafter, the “Interpretation at Issue”), which held that the true heir would lose the original right of inheritance after the statute of limitation for the restitution of the inheritance right expired and the heir in appearance would then obtain the inheritance right, are declared unconstitutional and will no longer apply after the promulgation date of this Interpretation.
According to the Interpretation, the right of inheritance, the restitution of the right of inheritance and the right exercisable over all kinds of inherited property based on the inheritance right (including the right in rem) all have property value and are protected under Article 15 of Constitution. Article 1146, Paragraph 1 of the Civil Code provides: “Where the right to inherit has been infringed, the injured party or his statutory agent may claim its restitution.” The Legal Precedent at Issue states: “The right to seek restitution of the right of inheritance originally covers all rights such as the request to confirm the qualifications of an heir and the restitution of the inherited objects. If the right to seek such restitution lapses due to the expiration of the statute of limitation, the original right of inheritance is entirely lost. Therefore, the heir in appearance shall certainly obtain the right of inheritance.” However, the system in which the restitution of the inheritance right may be sought seeks to grant a special status to the true heirs so that they may completely and rapidly exclude an heir in appearance from infringement upon the inherited property. Although it is true that if the statute of limitation for true heirs’ right to seek restitution of the inheritance right expires with a demurrer asserted by heirs in appearance, the true heirs will lose their special status with respect to such right, still they do not lose their status as the statutory heirs and the inherited property they certainly assume and may still exclude infringement and request the return of such property pursuant to relevant provisions of the Civil Code (such as Article 767 of the Civil Code). Only then the Shih-437 Interpretation of the Judicial Yuan, which states that “the right to seek restitution of the right of inheritance and the individual in rem right are separate and co-existent rights of true heirs” and the gist of Article 15 of the Constitution concerning the protection of the people’s property rights are followed. The portion concerning the finding that “the heir in appearance shall obtain the right of inheritance since the original inheritance right is entirely lost” in the Legal Precedent at Issue is not consistent with the gist of Article 15 of the Constitution concerning the protection of the people’s property rights and shall no longer apply after the promulgation date of this Interpretation. However, the true heir shall still be subject to the statute-of-limitation provisions of Article 125 of the Civil Code when exercising an in rem right over personal property or registered or unregistered real estate in accordance with Article 767 of the Civil Code.
The Interpretation at issue has the same effect as the Legal Precedent at Issue. According to the above explanation, now that the Legal Precedent at Issue is unconstitutional, the Interpretation at Issue is also unconstitutional. Moreover, the Jie interpretations rendered by the Judicial Yuan were, by nature, uniform interpretation on laws and regulations pursuant to the laws at that time rather than constitutional interpretations. Under the current constitutional system, although judges can cite the Jie interpretations when trying cases, still they may trial cases pursuant to law and indicate their different opinions as appropriate and are not bound by such interpretations. With respect to the level and effect of the Jie interpretations of the Judicial Yuan, portions inconsistent with the gist of an interpretation rendered by the Grand Justices shall be changed. Therefore, since the portion concerning the assumption of inherited property by presumptive heirs in the Interpretation at Issue is not consistent with the gist of Article 15 of the Constitution concerning the protection of the people’s property rights, it shall no longer apply after the promulgation date of the Interpretation.