兩岸由於歷史因素而阻隔,在處理殯葬事宜亦產生一定變化,雖然兩岸政治上處於對立狀態,然而經濟上的交流已無法避免,本研究目的旨在促進兩岸人民對雙方殯葬管理法制有所瞭解與完整認識,使法學界注意到此一法學的邊陲,並提供两岸人民處理殯葬事宜或有意進行投資殯葬事業者參考。本研究採取比較法,就兩岸殯葬管理條例之實體內容進行逐條比較。本研究結果如下:兩岸殯葬管理法規條文規範力度不同,台灣地區通常於〔殯葬管理條例〕中列舉細節;大陸【殯葬管理條例】通常僅具原則性規定。兩岸對節約土地都相當重視。兩岸皆禁止公墓外之埋葬。兩岸火化的推動方面,台灣地區以政府鼓勵方式進行,大陸火葬區強制火化。大陸禁止家族、宗族墓(塔位)、活人墳之興建,以及墓穴、塔位之生前預售;台灣地區並不禁止。台灣地區殯葬設施開放民間設置經營,殯葬禮儀服務業以私營為主,殯葬設備、殯葬用品並不限制私人間買賣。大陸則以公營為主,也醞釀借助民間力量完善殯葬制度。在殯葬設施管理權與經營權方面,台灣地區殯葬設施管理權與經營權基本上相分離,大陸常將管理權與經營權混為一體。大陸明確規範對於少數民族殯葬習俗之尊重,台灣地區無此規定。台灣地區對於殯葬服務業的設立、登記與開業期限直接於〔殯葬管理條例〕明文規定由直轄市、縣(市)主管機關許可;大陸則將該等事項授權各地方主管機關,根據不同性質的殯葬設施經營單位,其審批層級有所差別。殯葬禮儀服務業方面,大陸通常依附在殯儀館。對於殯葬禮儀服務人員之規範,台灣地區僅具備一定規模者才須強制設置殯葬禮儀師;大陸並無強制專任殯儀服務員之規定,至於殯儀服務員之證照規範,有民政行業工人技術等級標準可依循。大陸對運輸屍體必須進行必要的技術處理,台灣地區並無強制規範。

符號及用語說明:

一、為避免两岸法規名稱相同而混淆之問題,談及大陸法規、政府文件以【】為標誌,台灣地區法規、政府文件則以〔〕為標誌。

二、本文對於兩岸之個別名稱,分別稱呼為台灣地區(以下簡稱台灣)與中國大陸(以下簡稱大陸), 此係站在較為客觀且明確之立場所用之名稱。若同時提及「台灣」與「大陸」者,則以「兩岸」稱呼之。

三、就法規條文之書寫名稱兩岸有些差異,依台灣〔中央法規標準法〕第 8 條, 法規條文於條以下得分為「項、款、目」;依大陸【立法法】第 54 條:「法律根據內容需要,可以分編、章、節、條、款、項、目」。可見大陸對於條文款項之稱謂與台灣相反,本文統一採用台灣〔中央法規標準法〕第 8 條之分類規定,依序稱「條、項、款、目」。

四、就法律用語,台灣與大陸在殯葬管理條例中,用語不一部分,原則上全採台灣用語。例如大陸【殯葬管理條例】之「遺體」本文以「屍體」代之;「墓穴」本文以「墓基」代之;「骨灰格位」本文以「骨灰(骸)櫃」代之。但對法條或文件的全文引用部分,為求不失原義,其引用文字盡量避免更動。

本書感謝玉林師範學院高層次人才科研啟動基金專案課題編號:G2019SK02。

葉修文博士,畢業於中國人民大學民商法專業,任職廣西玉林師範學院,主要從事民法、殯葬法研究。

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