Family Law in this lecture mainly refers to book four family and book five, succession of the Taiwan's Civil Code. The reason for this decision is straightforward in the context ranging from law school courses, bar exams, and legal treaties. Book four and five are often lumped together and categorized as state as law in Taiwan. Book IV includes chapters on marriage, parent, and child guardianship, maintenance, house and family council. Book V consists of three chapters. Heirs to property, succession to property and wills. The Post-War Taiwan Family Law is a local development in the context of globalization. Legal innovations developed in Euro American countries and diffused around the world after World War II such as Non-fault divorce and the doctrine of best interests of the child are adopted by and adapted into Taiwan Family Law. The increase of cross-border marriages in recent years inevitably brings issues regarding international family law. The legalization of same-sex marriage also exemplifies legal reform responding to both local situation and global inspiration. Also, rapid aging population lead to more needs from the state to financially support elderly and an adoption of more flexible guardianship system. In the lecture of constitution and lecture of legal history, Professor Chang and Professor Chen will give some examples related to marriage and parent-child relationship. Therefore, this lecture, will introduce a different aspect of current Family Law in Taiwan. That is the way of how we treat vulnerable adults, including elders and persons with disabilities in Family Law. The relationship between adult, children and parents. In some Western legal jurisdictions is not considered a part of Family Law. The Economical support and decision-making support for vulnerable adults are stipulated in social security law and guardianship law which some legal professionals integrate into the field Elder Law. On the contrary, inherited from Qing code and Japan's Meiji Civil Code. Family members owe a prioritized duty to assist vulnerable persons in Taiwan. Since the main supporters are family members and most important of all, the obligors in the first order are usually the adult children of vulnerable persons. Both economical support and decision-making support are prescribed in Book IV, family of the Taiwan's Civil Code. Therefore, we will examine the changing role of the public vie-se-vie the private family through discussing issues related to elderly support and adult guardianship. While financial support and care for elderly might be a private responsibility of the elderly themselves, or a collective responsibility of the whole society in the West. It is a family responsibility in most non-western societies, such as China, Japan, Singapore, and Taiwan. Filial obligation in traditional Chinese society includes financial, personal care, and affectionate bonds. Among the three, however, only financial part is retained in Modern Taiwanese law. In Taiwan's Civil Code, the obligors of the family support are ranged widely including the following persons. The first is the lineal relatives by blood, and the second is the lineal relatives by marriage living in the same household. The third is siblings, and the fourth is the head and the members of a house and of course, the spouse of the person is not an exception. Among these above mentioned person's, adult child and the spouse come first. The children's obligation of providing maintenance to their elder parent is based on traditional notion of filial piety in Confucianism. According to an official survey to seniors in Taiwan, the most important economic form of support, although declining gradually, is still that from children even today. Nevertheless, a fundamental change in population and family structure has made it difficult for this regime to continue. Let's look at some statistical data in current Taiwan. The first important demographic trend is aging with improvements in medical treatment and standards of living. Life expectancy in East Asia, including Taiwan, has been remarkably extended. In addition to the data listed in the table, I also like to subsidize that in 1957, the life expectancy in Taiwan was 60 years for males and 64 years for females. On the other hand, in 2019, it was 78 years for males and 84 years for females. That is to say, seniors in Taiwan now have 17-20 more years after retirement compared to their counterparts 62 years ago. Another notable change in Taiwan is extremely low fertility rate. The total fertility rate in this table refers to the average number of children born by each woman over the course of her life. The data shows that the total fertility rate in East Asia region is far lower than 2.1 children per woman. Two point one children per woman is so-called replacement rate. Compared to the data from the United States and Europe, East Asian countries have achieved the lowest number in the world. In addition, Taiwan, unfortunately, almost the lowest total fertility rate in the world. Fewer babies and longer life expectancy have led to a higher proportion of seniors. Taiwan officially became an aged society as the population of seniors reached 14 percent in March 2018. At the same time in Taiwan, the average number of household members in 1990, was four persons, and in 2019, the number decreased to 2.67 persons. With a decrease of family members the weakening family solidarity and the graying of the population make it more difficult for families to support the elderly and this has an impact on the law, definitely facing the population aging. In order to help to deal with the financial and health care needs of the elderly, the Taiwan government started a series of law reform, such as setting up a national pension system, improving health care insurance, amending occupational pension system, and revising adult guardianship. Among these new attempts, adult guardianship is stipulated in Part IV Family of the Civil Code. We will briefly introduce current system of guardianship in the next section. Facing a rapidly expanding elderly population, many countries have begun to shift the cost of caring for the elderly to their children through enacting, for example, filial responsibility law or providing deduction or exemption programs in tax or linking support an inheritance. Some of these family-oriented approaches already existed in Taiwan. It is worth pointing out that Taiwan does not follow this direction in the sense that Taiwan does not tend to reinforce the above-mentioned approaches. Rather, in some occasions, such as the adult guardianship, the legal reform in Taiwan ends at lightening the burden of family members by making it the state or society responsible for elderly care and support. An example of shifting part of the responsibility of support from private to public is the newly introduced Article 1118-1 of the Civil Code which entitles adult children to waive or mitigate obligation of supporting their parents, if parents who require support, they had not fulfilled their duty of supporting the children in early years. Traditionally, the family responsibility of support each other, stipulated in the Civil Code is applied prior to public assistance. That is to say, in order to receive public assistance, one has to prove that his or her income and assets is less than the minimum level and has no family members who are legally responsible to offer support. That is provided by Article 4 and 5 of Public Assistance Act. If the applicant has family, he or she will not be entitled to public assistance unless he or she uses all means, including suing the family members to acquire support but fail. Nevertheless, slightly different from the regime in Japan and Korea, Taiwan's Public Assistance Act does not require the applicant of public assistance to acquire the support from all of the family members listed in the Civil Code because such a requirement is considered unrealistic. As we mentioned in Taiwan's Civil Code, instead, it only considers the support capability of the applicant's spouse, parents, and children. Through the difference between Public Assistance Act and the Civil Code, we can see that state's endeavor to make up for the shrinking family functions. The other example is the newly introduced Article 1118-1 of the Civil Code. It further lightens the obligation of family support. As known to all, the responsibility of family support is in principle, not reciprocal. That is to say, the fact that a parent did not support his or her child well does not affect his or her right to claim support from the child theoretically. However, this result is considered unfair nowadays by Taiwan's people. To deal with this problem according to Article 1118-1, if the parent requiring support did not fulfill the obligation to the child in early days without justifiable reasons, the child is entitled to petition to the court for mitigating or even waving such an obligation. In many cases, the plaintiff, usually the detached father or mother, brings the lawsuit against the child reluctantly as a prerequisite of acquiring public assistance and actually anticipates the court to favor the child's defense. Even if true intention of the parent and the child are consistent, meaning that, in not putting the burden of support on the child, on account of public interests, the law requires them to go to the court and received the decision officially. According to an empirical study which collected 148 cases from all the strict courts in Taiwan from 2010 to 2013, most of litigations are between aged fathers and adult children, which indicates that the males in Taiwan were less likely to do good parenting than females. The application of Article 1118-1 shows that people in Taiwan gradually agree to excuse a child who experienced a miserable childhood caused by his or her parent from filial obligation and the support of the former unfit parent becomes a public responsibility. Next we will look at the adult guardianship system, including the law reform. It is another pressing issue faced in aged society. In Taiwan, guardianship has been considered a family matter rather than social responsibility for a long time. It is because in traditional Chinese society, the role of the state is different from that in western countries and therefore lacks the idea of parents patriae, which is the cornerstone of guardianship in England and America. More specifically, prior to the legal reform in 2009, adjudication of interdiction was the legal instrument used to protect a vulnerable person. A person declared an interdict would become completely legally incompetent, meaning that the person was deprived of capability in all areas of decision-making. This all-or-nothing model of the ROC Civil Code was criticized, being inflexible, making people reluctant to use guardianship. The 2009 law reform, repeals the old adjudication of interdiction and establishes the new types of protection, which is guardianship and assistance. Next table indicates that the number of guardianships including the old adjudication of interdiction was around only 2,000 per year before the law reform, and then gradually increased to more than 4,000 cases per year. In the ROC Civil Code, the guardian of a vulnerable person was restricted to his or her family members or the person recommended by the family council, also, it was the family council's duty to supervise guardianship. In the new law reform, the law revokes the order of priority and authorizes the court to select one or more guardians or assistance among the spouse any relative with four degree of kinship, relatives with whom the ward has lived recently, the public agency, the organization of social welfare, or other proper persons. At the same time, the law also shifted the duty of monitoring of guardianship from family council to the court. Notwithstanding this change, it is estimated that more than 90 percent of guardians in Taiwan are still family members of the ward. The reason for this family inclined practice that there are no trend legal professionals such as lawyers and social workers that the court can rely on and regarding the possibility of appointing public agencies to be guardians, it is found that public agencies are reluctant because of limited budgets. In conclusion, although the backdrop of the 2009 law reform is the weakened family solidarity, as we mentioned. Actually, the family's role in adult guardianship is indeed diminishing but not completely vanishing. To make up for the deficit, the legislators involved the court to shoulder this responsibility. Despite families still plays an important role in adult guardianship, the courts still need to be very careful about the distinction between families arbitrariness, and the ward's real wishes or interests. Finally, was the conclusion of this section, we will say that originally family law is considered as a repository of local traditions. Sometimes it has been highly influenced by legal ideas circulated globally. The difference between Taiwan Family Law and those in Euro-American countries have diminished steadily over the past century, despite contrasts in political and cultural contexts of legal reforms. The trend toward individualism and equalitarianism among family members are definitely discernible pattern of the development of Taiwan Family Law. Universal legislative principles such as doctoring of the best interests of the child or none fault divorce were also adopted at least partially and became the guiding principles in Taiwan already. However, as shown in this section, distinctive features in Taiwan Family Law also existed. One example is how we face population aging, referencing the legal innovation in countries which also face rapidly expanding elderly population. At the same time, adapting these legal methods to local situations where families have been taking most of the responsibility of care-taking. The revision of adult guardianship and support in Taiwan aim at mitigating the burden of a family by making the state or society more responsible for elderly care and support.
