The Constitutional Implementation of Legal Capacity under Article 12 of CRPD with the Comparative Analysis of European Experiences

• Main Authors: Li-Yu Huang, 黃立宇
• Other Authors: Tzong-Li Hsu
• Format: Others
• Language: zh-TW
• Published: 2017
• Online Access: http://ndltd.ncl.edu.tw/handle/3x9t79

碩士 === 國立臺灣大學 === 法律學研究所 === 105 === The UN Convention on the Rights of Persons with Disabilities (CRPD) has been incorporated into the Taiwan legal system since 2014, above all, article 12 of CRPD, according to General Comment No. 1 of CRPD Committee, in order to implement the supported decision-making, the states parties should refrain from any actions that deprives persons with disabilities of the right to equal recognition before the law. The legal effect of the commencement of guardianship under Civil Code of Taiwan, including the commencement of assistance, deprives or restricts the legal capacity of persons with mental disability or intellectual disability, intervening the exercise of the rights under Constitution of R.O.C., and thus belongs to the so called substitute decision-making as defined by the CRPD Committee. The topic of this thesis is to reconcile the gap between article 12 of CRPD and the domestic legal system through the constitutional interpretation to fulfill the constitutional implementation of legal capacity under CRPD. To discuss the implementation of CRPD concerning the guardianship system, the thesis starts from the European experiences, analyzes the implementation under article 12 of CRPD in European countries and their cognition to the legal capacity through the reports of European states parties and the concluding observations of CRPD Committee; introduces the recommendations of the Council of Europe as the common standard of European community; and finally, finds out the gap between the European experiences and the conventional value through the interpretation and the application of the European Court of Human Right on the European Convention on Human Rights. On the comparative ground, the thesis answers the topic in three dimensions: first, replying the cognition which argues that the Taiwan legal system is not subject to CRPD under international law, because the Taiwan government failed to accomplish the conventional accession procedure, the thesis denies the viewpoint by the notion of unilateral declaration under international law, and thus, the Taiwan government does have the conventional obligation to perform CRPD; second, to the meaning of the ‘‘constitutional implementation’’, the thesis analyzes the constitutional interpretations of Judicial Yuan, finds out that the international conventions may have the value of reference in practice, its significance is, through the constitutional interpretation, to confirm the constitutional foundation of the personality rights of persons with disabilities, and thus, to constitute the legal environment suitable for the implementation of supported decision-making; and last, with the cognition of article 12 of CRPD and the European experiences, the thesis examines the constitutionality of the guardianship system of Civil Code under the personality rights of persons with disabilities in article 22 of the R.O.C. Constitution with the principle of proportionality, due process of law, and the principle of equality, and finds out the conclusion on unconstitutionality, the thesis also provides three suggestions for the upcoming legal reform.