基於事實或事實行為發生非婚生父子女關係──比較法主要立法例與民法第一○六五條第一項後段撫育規範之比較觀察

Paternal affiliation between father and the illegitimate child can be established through recognition, which is a model of legal action, as well as through model of fact or factual action. Model of fact or factual action gradually appears in the main legislations of comparative laws after 1980s. The elements of the selected facts or factual actions vary, but all parallel appear in legislations which require formal recognition. This expands the paths to establish the paternal affiliation for the illegitimate children and is beneficial to them. In 1930, the Civil Code codified the nurture provision in Art. 1065 para. 1 pt. 2. Therefore the paternal affiliation of the illegitimate child can be established through the factual actions of nurture of the father. Under the legislative background of recognition without any formal requirement, nurture, a broad concept, is also adopted in the nurture provision. This demonstrates that nurture provision aims at facilitating the establishment of affiliation between the illegitimate child and father. While nurture with the intent of recognition constitutes an implied recognition and therefore the recognition provision is applicable, nurture provision dos not require the intent of recognition of the father. Therefore, the nurture provision is introduced with an independent meaning. Besides, in order to prevent nurture action of non-birth father to establish paternal affiliation, the true connection of parentage is required for the application of nurture provision. While the nurture provision comprises nurture-based recognition, the recognition provision without formal requirement could therefore de lege ferenda be modified into recognition provision with formal requirement. The affiliation established through recognition could therefore obtain clarity and stability.