| Summary: |
由於時代的變遷及交通的便利,近年來內國人與外國人間之往來愈趨頻繁,涉外婚姻之比例亦相對日趨提高。再加上自二十一世紀起,同性關係之議題日漸的為世人所重視,歐美各國紛紛將同性婚姻合法化,甚或創立伴侶登記制度,傳統「家的結構」不再局限於異性間始得組成,昔日之公序良俗及道德規範,在現代人眼中亦未必有相同的詮釋。在世界各國針對同性關係採取逐漸開放之態度下,反觀我國社會針對同性戀者之接受度尚趨保守,且法律上基於傳統以來對於民法婚姻夫妻之解釋限於異性間結合之現代,同性當事人間尚無法透過我國民法親屬編規定締結婚姻。即便我國已於二0一三年十月提出婚姻平權草案並經立法院院會一讀並交付司法法制委員會審議,但基於婚姻成立後將衍生諸多法律效果,例如扶養、親子關係等,為避免倉促立法所導致日後法律適用上之問題,短期內欲三讀通過並促使國內同性婚姻合法化,實非易事。是以,在現行國內尚不承認同性婚姻及未有其他伴侶制度之前提下,一旦我國法院面臨涉外同性關係之問題時,究應如何定性涉外同性關係,或係應如何在國際私法欠缺同性關係之相關準據法時適用準據法,甚至是否即謂得以同性關係違背我國之公序良俗而全面否定涉外之同性關係(含同性婚姻、伴侶制度)。本文擬以歐美國家同性婚姻及伴侶制度之比較法觀點,於實體法上比較傳統異性婚姻與同性婚姻及伴侶制度間賦與權益之異同,作為判斷解決國際私法上定性之問題,再分析歐美國家針對同性婚姻及伴侶制度準據法之立法,提供作為我國立法之借鏡及參考,最後輔以美國州際間對於同性關係之承認,探討內國承認涉外同性關係之良窳,及其與內國公序良俗間之關係,進一步檢視現行法下我國承認涉外同性關係之可能性,及承認後對社會所帶來的影響。期能就公序良俗及身分權保障之間取得一平衡點。 Because of times changing and the development of traffic system, the contact between foreigners are more frequently. Therefore, the proportion of the foreign marriages compared to the past is increasing gradually too. Since the 21st century, people pay more attention to the issue of same-sex relationships, and many countries legalize same-sex marriage and establish partnership register system, including domestic partnership and civil union, the traditional family's members are not limited to two opposite sex people only. In other words, two of same sex people can live together by getting married or registering into partnership. The rules and moralities people abided by in old days may contain different meanings nowadays or afterwards. When so many countries take a positive attitude toward same-sex partnership, our society in Taiwan not only still keep conservative concept but also forbid two of same-sex people getting married in contrast. Even though in October 10th, 2013 Marriage Equality Act has been drafted and first read by Legislative Yuan, it is not easy to pass in the short term. Due to there are a lot of marriage effects like aliment, parental right, etc, and in order to avoid hasty legislation may cause some problems in application of law in the future. Therefore, under this situation, when our court face foreign same-sex marriage or foreign same-sex partnership, there are some problems might be happened. First problem is how to characterize the foreign same-sex marriage or same-sex partnership. Second problem is how to apply law when lex fori is deficient in applicable law of same-sex marriage or same-sex partnership. Moreover, it is a doubt that whether the court can deny foreign same-sex marriage or same-sex partnership comprehensively for it contrary to the domestic public policy and good morals. Therefore, the essay uses Comparative law perspective, compares the rights and obligations of traditional marriage with same-sex marriage and partnership register system in the European and American countries to solve how to characterize the foreign same-sex marriage or same-sex partnership. Then, the essay tries to analyze the applicable law of same-sex marriage and partnership register system in the European and American countries, provided as our country's legislation reference. Finally, the essay expects through the confession of same-sex marriage and partnership between states in America to examine the pros and cons in confession oversea same-sex marriage and partnership, and discuss the possibility to recognize the overseas same-sex marriage and partnership at present legal system further. The ultimate goal is to find a balance between public policy and the right conferred by same-sex marriage and partnership. |