大法官解釋 釋字第748號 |
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| 公佈日期：20170524 |
| 解釋爭點 |
| 民法親屬編婚姻章，未使相同性別二人，得為經營共同生活之目的，成立具有親密性及排他性之永久結合關係，是否違反憲法第22條保障婚姻自由及第7條保障平等權之意旨？ |
| [12] 人權事務委員會之認定，其英文原文如下： 8.2 The authors' essential claim is that the Covenant obligates States parties to confer upon homosexual couples the capacity to marry and that by denying the authors this capacity the State party violates their rights under articles 16, 17, 23, paragraphs 1 and 2, and 26 of the Covenant. The Committee notes that article 23, paragraph 2, of the Covenant expressly addresses the issue of the right to marry. Given the existence of a specific provision in the Covenant on the right to marriage, any claim that this right has been violated must be considered in the light of this provision. Article 23, paragraph 2, of the Covenant is the only substantive provision in the Covenant which defines a right by using the term "men and women", rather than "every human being", "everyone" and "all persons". Use of the term "men and women", rather than the general terms used elsewhere in Part III of the Covenant, has been consistently and uniformly understood as indicating that the treaty obligation of States parties stemming from article 23, paragraph 2, of the Covenant is to recognize as marriage only the union between a man and a woman wishing to marry each other. 8.3 In light of the scope of the right to marry under article 23, paragraph 2, of the Covenant, the Committee cannot find that by mere refusal to provide for marriage between homosexual couples, the State party has violated the rights of the authors under articles 16, 17, 23, paragraphs 1 and 2, or 26 of the Covenant.’http：//hrlibrary.umn.edu/undocs/902-1999.html, last visited: May 18, 2017. [13] A/HRC/19/41, para 68 states that: ‘The Human Rights Committee has held that States are not required, under international law, to allow same-sex couples to marry⋯⋯.’ See https://documents-dds-ny.un.org/doc/UNDOC/GEN/G11/170/75/PDF/G1117075.pdf?OpenElement, last visited: May 18, 2017. [14] Convention for the Protection of Human Rights and Fundamental Freedoms Article 12 stipulates that: 'Right to marry: Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.' http://www.echr.coe.int/Documents/Convention_ENG.pdf, http://www.echr.coe.int/Documents/Convention_ZHO.pdf, last visited: May 16, 2017. [15] Eur. Court HR, Schalk and Kopf v. Austria, no. 30141/04, § 61, 101, 108, 24 June 2010. [16] Eur. Court HR, Hämäläinen v. Finland [GC], no. 37359/09, § 38, 102, 16 July 2014. [17] Eur. Court HR, Oliari and Others v. Italy [GC], nos. 18766/11 and 36030/11, § 102, 21 July 2015. |
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