Page 151 - 臺灣原住民族法學期刊第一卷第八期

͏ԫԫ΁ʕٙ୦࿕جj੽ၽᝄ৷ഃج৫ڀᇳʱ৫ 109 ϋܓࡡɪο 5 ໮ԫ΁ࠃ͛ʘীሞ

Abstract

This essay, beginning with Taiwanese Year 109's of superior court in Hualien

Indigenous Appeal No. 5, gives a discussion of Taiwanese indigenous people's
customary law in civil litigations. Pursuant to Article 10XI and the former part of

10XII of the Amendment of Constitution, the state should protect indigenous culture,
and to some extent the application of indigenous customary law to civil legal

relationship could be a vital part for upholding indigenous identification. However,
article 1 of the Civil Code, which stipulates the source of law, renders customary law
almost not applicable, and the lack of evidential means makes it even harder to resort

to customary law in civil litigation. If customary law is applicable, either through
Rechtsfortbildung or by enlargement of source of law, the codification of customary

law is essential preparation. In this aspect, the structure and style in which Adat Law
in Dutch East Indies and Taiwanese Private Law are helpful reference to draw up a

digest of Taiwanese indigenous customary law for the Judiciary to apply.

Keyword: indigenous people, customary law, civil law, rights in rem, rights of real

property, indigenous peoples' court, Rechtsfortbildung, codification

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