| 摘要: | 人之生存係以勞動為基礎，進一步實現自我。隨著社會生活形態之變遷、發展，導致勞動分工趨向細密，生產體的規模逐漸擴大，使勞動關係的建立及內容更加頻繁和複雜。勞動雖然自始存在於人類生活，但對於勞動者本身並非全然受到重視與保護，在那民智未開及不自由時期，許多底層勞動者習以為常地忍受來自上層統治者或奴隸（領）主的殘忍剝削。嗣後人權觀念於眾多哲人儒士將自然法思想混入人文主義色彩後提出相關論述，人們對權利認知與實踐有所覺醒，並體現於制定根本性或最高性規範。
資本主義自工業革命後，藉由歐美等國影響力擴張，將工業化資本主義快速推向全世界，其發展迄今陸續曝現相關缺點，其中勞動問題尤為明顯。究其原因乃過度強調個人化與自由化，使資源、財富高度集中於資本家，勞動者迫於生活所需及無抗衡力量而慘遭其剝削，勞資關係進入不對等狀態，猶如封建時期之權力（利）失衡。勞動問題除直接衝擊個別勞動者生活外，另衍生整體社會安全問題，因此對於傳統資本主義、古典自由主義湧現檢討與修正聲浪，以社會經濟權利為主之新一代人權概念就此得以擴充。
法律為現代社會生活中有效維繫秩序的必要規範，一般認為其目的在於實現正義，然而何為正義？爭議至今仍無法解決。現實世界中，在資源不可能無限供應的前提下，若能調和人類利益間之衝突，達成眾人皆以為可稱為合理且有效的分配，似乎正義可以就此體現。如是，法律體系中以勞動關係為主要規範對象之勞動法，如何在勞動環境與勞動關係的變遷和緊張中實現正義？其勢必處理反應利益之權利立論基礎，並為權利劃定範圍與界限。現今勞動權利發展源自於分配制度中的正義實現，更清楚地說就是分配制度的社會化修正，促使國家由消極之不侵犯人民權利轉為積極地提供人民保護和扶持，因此各種社會福利與社會安全措施隨之而起。
我國深受自由經濟及全球化的影響，勞動環境與條件相對地不穩定，突顯出勞方相較於資方的弱勢。而許多勞動法規範欠缺整體一致性思考，或者配套措施與執行人力不足，導致實務運作上漏洞百出。海峽對岸經濟快速發展，產業活動熱絡，其勞動關係如何維持公平與和諧，亦是世人所關切的焦點。因此期能藉由對權利與規範之根本性問題進行研究，據以釐清保障範圍，適應社會變遷的需要。
本文以勞動權利建構為研究主軸，藉由對於法與勞動法本質之分析，鋪陳建構過程中所呈現的正義觀、社會現實需要，並反應勞動權利對於社會共同生活之重要意義，續而以當前已劃出的勞動權利範圍、已建立的勞動基準規範，對兩岸自憲法及其以下之主要法規為檢視驗證，最終提出建議。
Labor has been thekey to the subsistence of human being prior to the self-realization. With the change and development in the lifestyle and society, there has been a more complexed division of labor. Meanwhile, the production unity has been gradually enlarged. As a result,the essence and establishment of labor relations has never been more complicated and recurrent than ever. Even though the labor comes hand in hand with the existence of human being, the laborersrarely get the respect or protection to the full extent.During the time when liberty is reserved for the minority, laborers from lower classes have taught themselves to take inany kind of cruelexploitation coming from their employers or owners. Later on, more and more scholars had blended the natural law philosophy into the humanism, and that brought the human rights to the table. People have been awakened to the knowledge and enforcement of the rights, and embodyingit by pulling together eithera fundamental law orthe highest norm.
Ever since the industrial revolution, the industrialized capitalism had been rapidly ushered into the whole world as the western countries expanded their influence. However, the farther it goes, more down sides were revealed along the way. The labor problem is one of the most severe ones. Over exaggerating individualization and liberalization were the main causes to that problem, and it resulted in the fact that the resources and wealth have been centralized to the capitalists. In addition to that, the laborers were never the employers’ match and had no choice but to put up with all the exploitation due to the basic survival needs.Needless to say, the imbalance between those who were entitled with power and the equal-rights seekersduring the period of feudalism is the best example. Not only did the labor problems impact the labors’ lives individually, it also brought forth the social securityconcerns as a whole. Therefore, it’s been required to examine and make corrections on the traditional capitalism and classic liberalism. And a revolutionized concept for human rights that is centered around social and economic is now birthed.
Law is crucial in holding the orders together in nowadays society. Generally speaking, it’s about carrying out the justice. Yet, here’s the unavoidable question: what is justice? That argument still goes on. In reality, justice seems available only if we may solve the conflicts and reach the goal that having the limited resources distributed fairly and effectively. If that’s the case, how can we embody the justice with the labor law, in which the labor relations are the main focus, especially when the tension in the labor environment is intense and the circumstances change so fast? First, the foundation cannot be only about having the rights that reflect the benefits. Furthermore, it’s necessary to set the limitation and boundary for the rights. The labor rights development nowadays is derived fromhaving justice realized; in another word, to have the social correctionin the distribution system. With that accomplished would encourage the country to go from considering not to violate the people’s rights passively to looking forward to providing promotion and support. Having that done would definitely help to seevarious social welfare and social security measures be aroused.
With the greatinfluence ofeconomic liberalism and globalization, the laboring environment and circumstances are relatively not stable in our country. It also reveals the imbalanced relationship between the labor and capital, and the former has always been in the weaker position. In addition, a lot of regulations of the labor law are not enforced properly due to the lack of thorough integration, related supporting policies and measures, or insufficient human resources in execution. In recent years, the economy in Mainland China has grown with a high speed, and there has been a surge in the cross-strait economic activities. How to maintain a fair and harmonious labor relationship has also been an issue widely discussed all over the world. Therefore, it’s necessary to study the fundamental problems on the labors’ rights and regulations, clarifying the legal protection to accommodate the social changes.
This thesis is studying on the structure of labor rights, spreading out the justice and the demand of the social realityby analyzing the essence of the labor law and the current legal system. Furthermore, it reveals the meaning and importance of the labor rights to maintaining the peace and order of the common social life. Finally, after evaluation and verification, it concludes with suggestions for the currently-defined labor rights and labor standards under the Constitutions of both Republic of China (Taiwan) and the People’s Republic of China (Mainland China). |
