| 摘要: | 從保險業務員到平台外送員之勞務關係爭議發現，隨著時代進步、經濟發展與企業經營彈性化，勞務給付方式也變得更加多元，且基於私法自治原則，勞雇雙方對其勞務契約之形式及內容得自由討論訂定，所以現今社會上的勞務契約各色各樣，立法院於2019年修訂勞動基準法第2條第6款，確立了勞動基準法之勞動契約從屬性特徵，但從屬性之內涵如何仍未解決，其中勞工相較對於雇主地位較為弱勢，勞動基準法係以保障勞工權益為目的制定，然欲享有其保障的前提卻是先認定勞工與雇主間之勞動關係是否為勞動基準法所規定之勞動契約，故關於如何界定勞動關係的判斷基準，係屬一重要議題。
本文將以我國勞動契約之發展與變革開始，以司法院大法官釋字第740號解釋為中心，研究釋字公布前後實務上勞動契約認定之基準。雖中國之勞動相關法律起步較晚，然因勞工保護的意識抬頭，近期正如火如荼地推動相關規範，故以中國之勞動法環境為參考，以平台勞工及家事勞工等具體案例比較與我國認定之異同，藉以討論現階段勞動契約認定之優缺點，以解決問題之角度提出改善意見與看法，期許未來能作為實務以及學理之參考，為勞工權利問題貢獻一己之力。
The way of labor-management relations has become more multiple, due to the progress of the times, economic development and the flexibility of business operation. Based on the principle of the autonomy of private law, both employees and employers are free to discuss and decide on content and the form of their labor contracts, there are various kinds of labor contracts in the society nowadays. In 2019, the Legislative Yuan amended Article 2, Paragraph 6 of the Labor Standards Law to confirm the subordination feature of labor contracts, but the definition of employees has not yet been resolved. However, the prerequisite for workers to be protected by law is to identify the labor relationship between employees and employers, which is why the basis for determining the labor relationship has become an important issue.
The article will begin with the development and changes of labor contracts in order to understand the connotation and meaning of labor contracts. Afterwards, it will focus on the interpretation of J.Y. Interpretation No. 740 and review the views of courts on the basis of labor contracts before and after its publication, observe whether this interpretation is perfect in reality and theory for Taiwan, to consider the possible challenges in judging related issues in the future.
Although China's labor laws were adopt legislation late, recently, the rise of labor awareness, many relevant regulations are being promoted. Therefore, this article will use China's labor relations as a reference, compare the similarities and differences with Taiwan's labor laws by using domestic workers and platform workers as specific cases to discover the strengths and weaknesses, and then suggesting the improvement. Hope this will serve as a practical and academic reference to contribute to the issue of labor rights. |
