- 英文摘要
- Inspired by a letter from a reader of Liberty Times on Labor Day 2022 calling on convenience stores to provide a chair for store employees to take a rest intermittently during the work day, this paper inspects the three Civil Code provisions concerning the rights and interests of the workforce.
Article 187 of the Civil Code provides that the employer shall be jointly and severally liable for damages to a third party caused by an employee’s tortious act in his or her work. At the same time, it stipulates that the employer has the right to claim indemnification from the employee after making compensation, and such right does not exempt the situation where the tortious act was a result of the employee’s minor negligence. Thus, the employee who performs his or her duties for the benefit of the employer, and is generally in weaker economical position, will bear the risk of ultimate liability for minor negligence alone.
Article 483-1 that was added to the Employment Chapter of the Civil Code, which provides that if an employee’s life, body and health are in danger in the course of performing labor service, the employer shall take any necessary precautions according to the particular situations. It is commendable to enable employees to claim damages when the employer violates the duty of prevention. However, it should be recognized that the legislative intent is not only to compensate for damages after an incident, but also to focus on prevention before an incident. Therefore, the employee should be allowed to request the employer to take proactive preventive measures.
Article 487 of the Civil Code concerning delay in employer’s acceptance of labor services provides that the employee is not obliged tomake up for the labor services but can still claim remuneration. However, the proviso stipulates that the employer may deduct from remuneration the expenses saved by the employee for not providing the labor service, or the benefits that the employee obtained from elsewhere for providing labor service, or the benefit that employees should have obtained but deliberately agreed not to do so. The general view is that it is a statutory deduction right. However, it does not conform to the core value of labor protection of the civil law. Therefore, Article 487 should allow the employer to decide whether to exercise such deduction right.
Finally, the paper briefly analyzes the newly enacted Labor Incident Law to support the protection of procedural justice in disputes between employees and employers, so as the expected civil law with the protection of labor rights and interests as the core value not become an empty talk.
- 目次
- 壹、從「請給店員一把椅子 想起 Walmart19 億和解金」的讀者投
書說起
貳、民法第 188 條之受僱人責任，應修正為以僱用人為侵權責任主
體，受僱人僅於故意或重大過失之情形，始與僱用人負平均之
連帶賠償責任，且有過失相抵之適用
參、民法第 483 條之1，應係僱用人對於受僱人之從給付義務，且
應為擴張之解釋，並應修正擴張對於受僱人保護之範圍
肆、民法第 487 條就僱用人受領勞務遲延之例外規定，應依字義解
為僱用人有扣除權但無扣除義務，不應解為依法直接發生扣除
的效果，從而僱用人未行使扣除權者，仍應為約定報酬全額之
給付
一、僱用人報酬額扣除權之特殊性
二、僱用人扣除權之範圍
伍、勞動事件法賦予受僱人程序正義之保障
一、合意管轄之調整
（一）勞工為原告
（二）勞工為被告
二、裁判費、執行費之暫免
（一）裁判費之暫免
（二）執行費之暫免
（三）保全程序
陸、結語
