Tsai, Gelderly Maintenance in Taiwan

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Tsai, GElderly Maintenance in Taiwan

Law, Social Justice & Global Development
(An Electronic Law Journal)

Elderly Maintenance in Taiwan: A Legally Pluralistic Perspective

Grace Ying-Fang Tsai,

PhD,

School of Law,

University of Warwick.

This is a refereed article published on: 28 February 2005

Citation: Tsai, G, ‘Elderly Maintenance in Taiwan: A Legally Pluralistic Perspective’, 2004 (2) Law, Social Justice & Global Development Journal (LGD).

Abstract

This article determines the interaction between customary practices of family mutual support in Taiwan and state law, with regard to the issue of elderly maintenance. Firstly, it examines the way in which plural legal orders of old-age family support actually operate on the ground, and their responses to state law. The courts’ perspective on the divergence between state law and local norms and practices is then reviewed with reference to five illustrative court cases involving elderly maintenance. The article argues that together, state law, other social norms and patriarchal power in the field of elderly maintenance play a significant part in the way in which they interrelate with one another. State law shapes family relations under Confucian ideology, and thus appears to play a dominant role during the interaction of plural legal orders. Local practice and patriarchal power is nonetheless preserved through the use of state law.It is suggested that state law, insofar as it relates to elderly maintenance, needs to be de-centred, and that the gap between state law and social norms of family support could be bridged by incorporating the local practice of family partition within the Taiwanese Civil Code.

Keywords: Elderly Maintenance, Family Law,Family Partition, Inheritance Law, Legal Pluralism, Old-Age Family Support, Social Norms.

1.Introduction

According to a Taiwanese national survey conducted in 2000, the aim of which was to establish the nature of elderly people’s living conditions, the number of those whose main income derives from support provided by their children had declined from 65.81 percent in 1986 to 47.13 percent in 2000 (Ministry of Interior, 2000, p 33).It is, furthermore, argued that due to urbanisation and industrialisation, the family’s traditional function of providing mutual support for its members has been undermined (Ku and Chen, 2001, p 100). This has raised the possibility that there is a problem of economic insecurity among elderly people in Taiwan.

The Children’s Support for Parents Draft Bill 2001 was introduced with the purpose of laying down the mechanisms by which, through ‘maintenance orders’ and ‘attachment of earnings orders’, the children of adults would be required to contribute a fixed amount of money to their aged parents’ bank accountsby way of financial support.This draft bill did not enter the legislative process as less than 30 legislators supported it (Legislation Yuan Meeting Rules 2002, Article 8). Nevertheless, some questions were raised by the tabling of the bill: Can the social custom of mutual support within the extended family provide elderly Taiwanese people with an economically-secured old age?What is the actual role of the extended family in cases where elderly people have no income of their own?

Huang (2002, p 69) has indicated that the majority of lawyers were opposed to the introduction of the 2001 Draft Bill because the Family Law 2000 had already stipulated the right of the aged to be maintained by their adult children.Taiwan’s legal education, under the civil-law system, is dominated by the ‘black letter tradition’ (Sugarman, 1991, p 34) in which the law is narrowly defined as a set of regulations enacted by the state or promulgated by the parliament.Backed by political power and legitimacy, the galaxy of state law is usually regarded as if it were an entity capable of controlling the social context.

However, this article argues that the focus on the provision of mutual support regulated in the Family Law 2000 is too narrow for old-age economic insecurity to be resolved.Regulation promulgated by the state and the parliament is not the only form of law.On the contrary, law is a complex aggregation of principles, norms, rules, practices and the activities abstracted from the social context where it exists (Moore, 1973, p 719). As Geertz (1993, p 184) argues, law is a form of social imagination, and the interplay between coexisting norms and cultural perceptions remains spatially and temporally specific.Lawyers practicing among different legal systems can experience different forms of ‘truth’, so far as law is concerned, and may struggle to establish a shared discourse (Cotterrell, 1998, p180).Therefore, it could be asserted that the law and the social context in which it operates must be jointly considered.

Santos (2002, p 437) also points out that people’s legal life is constituted by an interaction and intersection of different legal orders operating simultaneously: that is, by means of a complex interrelationship between state law, customary law and power. Moreover, Fitzpatrick (1983, p 159) maintains that there is a constituent interaction of legal orders and of their framing social fields. The family and its legal order could be profoundly affected by the state legal order, but the latter could also be intensely shaped by the former. While state law is important in constructing family relationships and regulating the position of the aged and their adult children in society, it could be argued that it is also necessary to decentre the state legal system and look beyond it into the realms of social consciousness and relations of power, so as to develop effective strategies for social change (Smart, 1989, p 164; Paliwala, 1993, p 297).

It is widely regarded that Taiwanese society embraces a legal culture which originates from ancient China. Wang (1997, p 150) argues that the legal culture in present-day Taiwan is a combination of traditional Chinese and modern western legal concepts. Many modern legal postulates from western law have gradually been transplanted into Taiwanese society, but Confucianism still has an impact on the Taiwanese legal system. Moreover, it is not new to mention that some customary laws in Taiwan are in conflict with the transplanted state law. For example, Cohen (1978, p 178) indicates that the local system of property relationships in southern Taiwan is in conflict with contemporary inheritance law, which gives sons and daughters equal rights to their father’s property. That is, according to standardised local practices, women would sign away all claims to family land when they marry, or upon their father’s death. However, no study has been conducted to examine how such conflicts among plural legal orders would affect the problem of old-age economic insecurity in Taiwan.
This article considers the interactions of customary practice concerning family mutual support and state law within the social field of elderly maintenance in Taiwan.Firstly, it examines how the plural legal orders of old-age family support actually operate on the ground, and outlines their responses to state law.The courts’ perspective on the divergence between state law and local norms and practices is then reviewed through five illustrative court cases of elderly maintenance. This article then argues that state law, other social norms and patriarchal power in the field of elderly maintenance all play a significant role through their interrelations with one another.State law shapes family relations under Confucian ideology, and thus appears to be in a dominant position during the interaction of plural legal orders.Local practice and patriarchal power is, nonetheless, preserved through the harnessing and use of state law.It could be suggested that state law, insofar as it relates to the maintenance of the elderly, needs to be de-centred, and that the gap between state law and social norms of family support could be bridged by incorporating the local practice of family partition into the Taiwanese Civil Code.

2.State Law Regulating Elderly Maintenance

Under the Family Law2000 in Taiwan, the right to seek court orders for financial support belongs to not only married couples and children but also to members of the extended family.Lineal ascendants and lineal descendants by blood arefirst in terms offulfilling this maintenance obligation, while the head of the household and any other members in the same householdcome second, brothers and sistersthird, and parents-in-law and children-in-lawfourth (Family Law 2000, Article 1115).

Accordingly, elderly people may seek a financial order against their children on the grounds that they are unable to sustain themselves (Family Law 2000, Article 1117, Section 1).Parents may also file a complaint against a grown-up child, regardless of their capacity to work (Family Law, 2000, Article 1117, Section 2).The duty of lineal descendants by blood to provide financial support may be reduced on the grounds of financial difficulty, but not entirely waived (Family Law 2000, Article 1118).

It is important to note that both sons and daughters are required to play an equal role in the obligation of supporting parents according to the terms of Family Law 2000.It is also important to note that there is no connection between the obligation of providing elderly maintenance, as regulated in Family Law 2000, and the statutory right to inherit parents’ property, as stipulated in Inheritance Law 1985, in which sons and daughters have an equal right to inherit (Inheritance Law 1985, Article 1138).Moreover, widows are entitled to an equal share of their late husbands’ legacy with their children, as delineated by Article 1144 of Inheritance Law 1985.

In cases where elderly people satisfy the grounds of complaint, the maintenance dispute should first be negotiated by the parties concerned, in terms of means of support (Family Law 2000, Article 1120).According to Dai (2002, pp541-542), there are three methods of supporting elderly people:

a)The other party could live with the elderly person and look after him/her;

b)The other party could provide goods or money to maintain the living of an elderly person. This pecuniary support could be a lump-sum payments or periodical payments.

c)The other party could establish the ‘support property’ for the elderly person to use or benefit from. (eg a house could be provided so that the elderly person could live in or benefit from the rent).

When determining the extent of support required, the court will consider how the reasonable needs of the elderly may best be met in the light of the resources available.The living costs of the elderly must be taken into account.In making its decision, one of those factors that are taken into account is the position and financial conditions of the person who is obliged to provide support (Family Law 2000, Article 1119).

3.Customary Practice: Family Partition

The prevailing ‘inner core’ of regulatory norms affecting the economic position ofelderly people in Taiwan comprises customary family structure and property relationships, which are alien to the family relationship constructed by Family Law 2000.In imperial China, the family (Chia in Chinese) played a highly significant economic role, as it was a primarily social and economic unit consisting of members related to each other by blood, marriage, or adoption, and sharing a common budget and common property.That is, all of the domestic property, including land, crops or money, was always owned in common and maintained for or used by the whole family, with the eldest male or head of the family as trustee.Family members with separate incomes from business or salary were supposed to contribute all of their money to the pool of family treasury administered by the family head or assistant (Lang, 1968, p p17, 158).Under the common budget, the aged parents were financially supported by the undivided patrimony, regardless of their ability to work.

Apart from the disparity of family relationships constructed by Family Law 2000 and local custom, the concept of ‘property ownership’, as regulated by Property Law 1995, deviates from the customary one.Instead of the ‘family’, modern property law recognises the ‘individual’ as the basic economic unit. Elderly people’s rights to property are protected if they have assets.However, the problem of old-age economic insecurity emerges when the social custom of ‘family partition’ (fen-chia in Chinese) takes place, which may require people who are elderly to transfer their property to their adult children before the former’s death.

According to Cohen (1970, p35), fen-chia was a juridical act of family fragmentation.Parents and children, brothers and other relatives would cease to be members of the same family after the family partition.New families were formed through the division of property.Together with property separation, many kinds of existing or potential co-operation would be terminated.The obligations that tied family members together, such as mutual support, would also come to an end.Pearl S Buck’s novel, A House Divided (1935), provides an early description of the tradition of fen-chia.

Under existing Property Law 1995, fen-chia may take place only in accordance with the aged parents’ wishes, and if the family assets and personal earnings are registered in their names.Customarily, the process of family partition may be initiated not only by aged parents. Rather, any son who is married[1] could, at any time, petition for a division of family property, regardless of the parents’ age (Shiga, 1978, p 135). However, if still alive, the father’s consent must be obtained before the family property can be divided, and, sometimes, he may initiate the division himself. The same applies to unmarried sons.

Traditionally, equal rights to family property apply to brothers, but not the mother or sisters (Cohen, 1978, p 189).It is well known that Chinese women have virtually no property rights.As Lang (1968, p 44) points out, daughters tend to receive small shares of family estate in the form of dowry, while the rest of the family property, in most cases, is distributed among the male family members at the point of family division. Cohen (1978, p 178) also maintains that even though the contemporary inheritance law in Taiwan emphasizes individualism and gender equality in property relations, and grants sons and daughters equal rights to their parents’ assets (Inheritance Law 1985, Article 1185), the standardised customary response to it is to require women to relinquish their right to family property when they marry, or upon the death of one of their parents.Daughters and wives would be regarded as heirs to their father’s and husband’s property only if no man survived in the clan (Lang, 1968, p 44).

Under the custom of fen-chia, maintenance for elderly people appears to be part of the ‘family partition contract’.Cohen (1978, p188) demonstrates that family partition in Taiwan is essentially a contractual procedure, in which a document would be drawn up at the end of partition proceedings which records details of the distribution of property and the allocation of responsibilities among the parties concerned.In some cases, the basic agreement regarding elderly maintenance is noted in the division document, but the methods of support are usually left unspecified. In other cases, the obligations towards the maintenance of elderly people are orally agreed but not included in the texts of partition documents.
According to Dai (2002, p 525), sons usually preserve collective responsibility for supporting aged parents and paying for their parents’ funerals after family partition.That is, the aged parents become the ‘collective dependants’ of the new families established by their sons after fen-chia.A room in each son’s house would be offered, and they would be looked after in rotation, usually monthly.This rotational arrangement is favoured because it makes it unlikely that a son will fail to live up to his commitment (Cohen, 1978, p 190).
There are alternatives to the rotational support of aged parents.For example, a portion of the family property under the title yang-lao (meaning ‘for old-age living’ in Chinese) may be allocated to the elderly person in question (Shiga, 1978, p 135). Alternatively, only one of the sons would support their aged parents, and in return, would receive compensation from the others, which may be in the form of fixed payments or through the assignment of additional land to the party undertaking the responsibility of providing the maintenance.Cohen (1970, p 25) indicates that in areas where land is not fertile or the farming area is rather small, only one son could feasibly remain with his aged parents on the family land.Whether given a cash settlement or not, imposingtotal responsibility for supporting aged parents upon the son who stays on family land is often be accepted by the other sons asadequate reimbursement.
The alternative arrangement may also be associated with the concept of the ‘eldest grandson’s land (Chang-sun tien in Chinese). The eldest grandson has a special status in Chinese kinship In Wolf’s study of Chinese mourning dress and its symbolism in Chinese kinship (Wolf, 1970, pp 195-196), it is found that the senior grandson goes to the grave dressed like the son, and is regarded as the youngest son of the deceased.Additionally, the senior grandson goes to the grave dressed as a son because he inherits as a son would.In other words, he has the right to inherit a share of the family estate with his father and uncles.According to Cohen (1978), the ‘eldest son’s land’ is rarely, if ever, freely awarded in Taiwanese society, for its allocation is inevitable on condition that the recipient’s family would provide the only support for aged parents (Cohen, 1978, p191).That is, if the ‘eldest grandson’s land’ is allocated, the eldest son’s family is assumed to take sole responsibility for maintenance of an elderly relative.