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題 名 | 寵物遺失時之收容與認養的法律效力:民法與動物保護法之適用=The Legal Effect of Sheltering and Adoption Lost Pets: Also Comments on Civil Code and Animal Protection Act |
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作 者 | 陳汝吟; | 書刊名 | 中原財經法學 |
卷 期 | 37 2016.12[民105.12] |
頁 次 | 頁51-104 |
分類號 | 548.38 |
關鍵詞 | 流浪動物; 遊蕩犬貓; 寵物; 動物保護; 遺失物; 所有權; 動物收容; 動物認養; Stray animal; Street animal; Pet; Animal protection; Lost property; Ownership; Animal shelter; Animal adoption; |
語 文 | 中文(Chinese) |
中文摘要 | 遊蕩於街頭之寵物,依世界各國動物保護之政策與趨勢,應由社會協助予以醫療、收容、送養,嚴重傷病者為解除其痛苦方施以安樂死。然而,法律體系仍將動物作為歸屬「權利主體」所享有之「財產」,適用民法遺失物拾得規定,以致發生認養前後飼主間糾紛。此種財產權觀點,或許再加入一些生命溫度,同時坦然面對現時社會上流浪動物收容困境,應能有更好調和各方利益的作法。收容、保管期間是保護原飼主所有權之體現,第三人須加以尊重;但飼主所有權在公共利益與動物保護觀念下應非絕對,並應強調相對稱的義務。考量動保法第14 條立法意旨,應解釋為民法遺失物拾得之特別規定,以利物權財貨歸屬秩序,並平衡兼顧具有生命之動物最佳利益的保護政策。 |
英文摘要 | According to the current policy and trend in the world of animal protection, pets wandering on the streets may need some kinds of assistance from human society, such as medical care, housing, adoption, or even euthanasia in special case only for relieving its pain. Nevertheless, animals are usually defined by law as objects in term of ownership applying current law about acquirement, creation, loss and alternation of rights in rem of personal property yet, there are perceivable disputes incurred between ex-owner and later adopter. This comment aims to resolve such disputes with a comparative law approach. It is conceivable that grace period for noticing owner of lost poverty is indications of respecting the property right. However, the owner's interest in his domesticated animals is not without conditions, and should have relative obligations, such as possessing and controlling power de facto over pets, the required ID microchip implantation, and the assurance of animal welfare. These legal protections can be seen as universal global trends. In Japan, the amendment of the Lost Property Act excludes domestic animals and leaves sufficient rooms for the enactment of the Animal Welfare and Management Act. In the US, there is special law for stray animals to fit into the insufficient part of Common Law and lost property regulations. Accordingly, animal protection is the core value in the most recent legal reform trend in developed countries. Such regulations are implemented with clear definitions on rights and obligations of owners, adopters, and rescue shelters for the purpose of animal wellbeing. Considering the overcrowded situation in wandering animal shelters, this paper suggests that Animal Protection Office shouldn't ask adopters to sign affidavit for returning animals, and seriously take their responsibilities to accomplish the purpose of Animal Protection Act of 2015 as well as to facilitate animal adoption in Taiwan. |
本系統中英文摘要資訊取自各篇刊載內容。