The constitutional law of the Chancellor of Justice was released, the Civil Code is unconstitutional! The same sex may be married, but whether by amending the civil law or by a separate law, the legislature will decide for a period of two years.
The first gay marriage in Asia results from the Constitutional case, the Chief Justice finally thought that civil law unconstitutional, gay can get married!
However, same-sex marriage is a civil law, or a separate law, determined by the legislature, the deadline of two years. If the law or legislation has not been repaired within two years, the same-sex two persons may, in accordance with the provisions of the Civil Law marriage chapter, enter into the household administrative organs for marriage and have legal effect.
The explanatory text states:
The third part of the civil law Relatives chapter II marriage provisions, not the same sex two people, and for the purpose of operating a common life, the establishment of a permanent relationship of intimacy and exclusivity, in this context, with the 22nd article of the Constitution to protect the people's freedom of marriage, and the 7th to protect the right of the people of equality of the intention of the relevant organs should be published in this interpretation two years, Ibn explain the intention to complete the amendment or enactment of the relevant laws, as to what form to achieve equal protection of the freedom of marriage, is the scope of legislation, overdue completion of the relevant laws of the amendment or enactment, the same sex two people set up a permanent relationship, can be in accordance with the Civil Law marriage chapter, the two-person witnesses signed the written, The registration of marriage to the household administration and the legal spouse's effect between the two registered persons.
What's going to happen next?
The Chancellor declared that the civil law was unconstitutional and required the legislature to complete the relevant law or enactment for a period of two years.
In other words, legislation, or civil law, will be decided by the legislature. However, if the legislature is unable to complete the legal protection of marriage between the same sex and two persons within two years, two persons of the same sex will have the legal spouse's effect automatically according to the marriage chapter of the civil law as long as they are signed by the witnesses of two or more persons, and go to the Household Administration office
In explanation of reason, the Chancellor explained that "the applicant, Mr. Chi Jiawei, has fought for the right of same-sex marriage to the authorities, for more than 30 years, and the legislature has not completed the relevant legislative procedures for more than 10 years, and this claim involves the freedom of the same sex-oriented persons to choose their own marriage, And with the opposite sex tendencies with the equal protection of the freedom of marriage, but very social and political issues, the public opinion organs because of the public opinion, 盱 balance the overall situation, subdivided coordination of facts, appropriate law or legislative response. This claim is related to the protection of the important basic rights of the people, the Court in the constitutional duty, should make a constitution binding force of judgment. 」
A review of the origins of events
The origin of the event since Chi Jiawei in March 2013, with the male companions to the Taipei City Wanhua households, the registration of marriage was dismissed, after the administrative proceedings, the case 谳.
Chi Jiawei that the second chapter of the civil law of the relatives of the marriage provisions "so that the same sex in the second world can not establish a legal marital relationship" is a violation of the Constitution, and the representatives of the Taipei municipal Government jointly proposed the interpretation of the constitutional claims.
March 24 this year, the Chancellor convened the Constitutional Court to discuss the following four points of contention:
1. Does the 2nd chapter of Relatives of the 4th part of the Civil Code allow marriage of the same sex two persons?
2. If the answer is in the negative, is it a violation of the Constitution of the Republic of China guaranteeing the freedom of marriage?
3. Is it unconstitutional to guarantee the right to equality?
4. In the case of legislation creating other systems of non-marriage (like sexual partners), are they in conformity with the constitutional guarantee of equality and the right to freedom of marriage
According to today's explanation, the answer to question 1 is, so the answer to question 2 and 3 is unconstitutional, and the answer to question 4 is that, if the creation of other systems, such as same-sex couples, is the legislative freedom of the legislature, it must conform to the constitutional guarantee of equality and freedom of marriage, regardless of whether the civil law or the law is enacted.
At four o'clock in the afternoon today, the conclusion was announced by the Secretary-General of the judiciary, Lutarang, in explanation of interpretation of No. 748, and the reasons for both English and Chinese were published on the Internet, as explained by the Lord Chancellor 's interpretation No. 748.
Persistent update problem Set
Q: What is the number of judges agreeing to same-sex marriage?
A: The judges are not made public in accordance with the provisions of the Law on the trial of cases.
Q: Can you explain the differences of opinion of the Chancellor?
A: We will publish the different opinions and how to interpret them, and we are not in a place to interpret the justices ' opinions.
Q: If foreign gay couples are married in Taiwan, will their marriage effectiveness be effective in other countries as well?
A: This is a foreign-related civil law applicable law, to be dealt with in accordance with the provisions of foreign civil law applicable law.
Q: Does the Chief Justice propose to fix the civil law or to enact a separate law?
A: The Chief Justice considers this to be the scope of the legislative formation.
Codification: It is the autonomy of the legislature to determine the meaning, but whether the civil law or legislation, we must guarantee the freedom of marriage and equality rights.
Q: Does the Chancellor have any thoughts on the effects of other relevant laws, such as the issue of income tax returns for couples?
A: The key point of the gazettal lies in the interpretation of the Constitution, which is aimed at protecting the constitutional freedom of marriage and the right to equality.
Press: The law has the rank, first is the constitution, second is the law, finally is the executive order. The Chief Justice's interpretation of the Constitution, as its name suggests, is "interpretation of constitutions", which can only and only be interpreted by the Constitution, establishing the principles of the Constitution and whether the relevant laws or administrative orders contravene the spirit of the Constitution. If the existing laws are inconsistent with the Constitution's guarantee to the freedom of marriage and equal rights, then the relevant laws should be adjusted, and the Constitution need not be subject to the lower level of legal thinking.
Q: Can the Claimant Chi JIAWEI immediately transact marriage registration?
A: It is necessary to wait for up to two years and give the legislature two years to revise or enact laws.
In other words, the comrades must wait until the legislature has completed the legislation or the law, up to two years later, May 24, 2019 before they can get married. That is, before this, comrades, if the identity card and two of witnesses written to the administrative organs to apply for marriage registration, the administrative organs can still be inadmissible, because there is no legal basis.
Q: Is there a situation where the existing law is invalid?
A: No, only the current civil law is inadequate.
Q: Is it necessary to repair civil law after two years?
A: According to the Chancellor, if the law is not amended two years later, the right to spouse and the obligation to bear spouses are exercised in accordance with the civil Law marriage chapter.
Vernacular law: The reason why the Chief Justice is No. 748
In addition to explaining the text, the Chancellor's interpretation of No. 748 explains that there are four pages of reasons, in short, that the Chief justice means ...
1. Protection of fundamental rights!
The Lord Chancellor released 748 excerpts: "Whether to marry", "and" ⼈ marriage "⾃, at stake ⼈ Sound development and ⼈ sexual dignity, is an important fundamental right (a fundamental rights), should be guaranteed by the 22nd article of the Constitution.
2. Same-sex marriage does not affect the social order of the heterosexual marriage construction!
Marriage is the stone of stabilizing society, and same-sex marriage does not affect the stipulation and effect of ⽤ civil law.
The Chief Justice released 748 excerpts: from the 1th section of the Civil Law ⾄ 5th section on the engagement, marriage, ordinary marriage effect ⼒, property and divorce provisions, have not been changed, completely does not affect the existing heterosexual marriage construction of the social order, and the same sex ⼆⼈ marriage ⾃ from, after the formal recognition of the law, More can with heterosexual marriage together become stable society of disk ⽯.
3. Sexual orientation is not a disease, but a legal disadvantage, and we cannot continue to discriminate legally against people with same-sex tendencies.
The present ⾏ marriage chapter only stipulates ⼀ male ⼀ Female's permanent union relations, the same sex two ⼈ in the current civil law cannot establish the same permanent union relations, this is the sexual orientation as the classification standard, this causes the same sex tendency person's marriage ⾃ by, receives the relatively disadvantageous difference treatment.
The Lord Chancellor released 748 excerpts: The marriage ⾃ guaranteed by the 22nd article of the Constitution is closely related to the ⼈ ⾃ and ⼈ sexual dignity, which is an important fundamental right. and sexual orientation is a ⼈ feature that is difficult to change (immutable characteristics), just like heterosexual, heterosexual or homosexual causes may include ⽣ and ⼼ factors, ⽣ living experience and social environment. ⽬ former World Health ⽣ organization, Pan American Health ⽣ Organization (that is, World Health ⽣ Organization Americas Office) and important medical organizations both at home and abroad have been considered homosexual tendencies of this ⾝ not disease.
4. It is an appropriate means to protect same-sex marriage by releasing the constitution.
In the last interpretation of the oral debate, some people questioned the interpretation of same-sex marriage through the judge rather than by the legislature, so does it contradict the democratic principle of democratic countries?
This time, the Chief Justice made it clear that in our country, same-sex tendencies were not accepted by the traditional customs of the society, were subjected to various de facto or legal exclusion or discrimination, have long been the political weakness, it is difficult to ⺠ the main process through ⼀-like, reversing its legal disadvantage status .
Therefore, when the law of sexual orientation as a classification criteria, and the same-sex tendencies to apply differential treatment, of course, should be appropriate ⽤ more stringent standards of examination, to judge the constitutionality.
5. Reproductive function is not a condition of marriage!
The marriage chapter of civil law does not stipulate that heterosexual marriage must be ⼒ as an essential element of ⽣ fertility.
If the marriage is not fertile, do not want to have children, marriages are effective, and can not be used as a legal cause of divorce. If the same-sex two people marry can not reproduce as the reason, not to let the same-sex two people marry, this is unreasonable differential treatment.
6. Same-sex marriage does not affect the identity, rights and obligations of the parties to the heterosexual marriage system
Now ⾏ the Civil Law marriage chapter, regarding the opposite sex marriage system the ⼈⾝ cent and the related rights, the obligation relations, does not change because this explanation ⽽.
The Chief Justice released 748 excerpts: This case is only stipulated in the marriage chapter, if the same sex is not ⼆⼈, it must be established that the permanent relationship of intimacy and exclusivity is the ⽬ of the ⽣ of the common life, and whether it violates the equal rights guaranteed by the 22nd article of the Constitution and the equality of the marriage ⾃ by and 7th.