勞動三法修正後罷工規範之研究

The Norm of Strikes after the Amendment of Three Labor Laws

本文除序言和結論外，主要內容分為兩大部分：一是勞資爭議與勞資爭議行為的類型與關聯，第二個部分在討論罷工合法性要件及其法律效果。首先討論勞資爭議與爭議行為之關聯，勞資爭議之類型分為兩種：權利事項之勞資爭議及調整事項之勞資爭議，而權利事項中又分為一般權利事項及涉及不當勞動行為之權利事項，調整事項之勞資爭議及涉及不當勞動行為之權利事項的勞資爭議得進行罷工。其次介紹爭議行為的重要類型。罷工合法性要件有四：主體正當性、目的正當性、程序正當性及手段正當性。符合四個正當性的罷工在刑法、行政法及民法均有阻卻違法事由，故為合法之行為，免除非法之責任。

The purpose of this research is to provide an overall review of the new norm of strikes in Taiwan. Industrial actions must be based on labor disputes. Labor disputes are essential integral and undivided parts of collective bargaining. Labor disputes often may be accompanied industrial actions. The state must remain neutral in labor relations. If there are not industrial actions to formation of pressure, then both parts of labor relation, either employers or trade unions, may be free to refuse to negotiate. The labor market would lose the collective bargaining system. Strike is the typical and most important industrial action. Since the Amendment of three labor laws, i.e. the Trade Union Law, the Collective Agreement Law, the Settlement of Labor Disputes Law, in 2008-2010 and implement in 2011 which format a new norm of strikes in Taiwan. In addition to the introductory and concluding remark, this paper is divided into three sections. Section one describes mainly the types of labor disputes and the relations between the industrial Actions. Section two discusses the four conditions of legitimate Strike, such as 1. Legitimate subject, 2. Legitimate purpose, 3. Legitimate procedure and 4. Legitimate means. Section three explains several legal effects of legitimate strike and illegitimate strike. The Approach of this discuss is not only with labor Law, but also with penal law, civil law and administrative law in Taiwan.