美國、德國暨海峽兩岸罷工法制之比較研究

A Comparative Study of Governing Legal Rules on Strike Action in the U.S., Germany, Taiwan and the Mainland China

本論文主要在探討分析和比較美國、德國、台灣及中國大陸地區相關的罷工法制。美國及德國均係經濟已開發國家，勞工運動頗發達，勞動法制也相當完備；而兩國長期以來，亦迭有罷工事件發生，故相關之罷工法制，均尚稱詳盡而具體。美國由各州及聯邦法院，以及聯邦最高法院透過判決所形成的有關罷工法制，暨聯邦勞動關係委員會所作之裁定，和有關聯邦勞動立法之相關規定，構成了美國罷工法制中最重要的內涵。德國的聯邦勞動法，及聯邦憲法法院和聯邦勞工法院的相關判決，為其罷工法制的主要淵源。美、德兩國關於罷工應符合何種條件方屬合法，以及法律對罷工行為有何種保障，暨罷工權發動及行使應受何種規範，均有頗為具體而明確之規範。相較之下，台灣有關罷工行為之規範，即屬明顯不足。目前僅有工會法相關規定，可資做為規範罷工的依據，但大多已不符實際。自1991年以來，雖有三次透過修正勞資爭議處理法、而將較明確具體且合乎當前社經情勢及勞動人權觀念的罷工法則，改列該法，以作為罷工權的行使規範的舉措，但立法院對三次修正案均未能審議，致迄今台灣仍無一套符合當前勞資關係及勞動三權發展情勢之罷工規範，殊令人遺憾。中國大陸方面，在改革開放以前，雖其憲法及黨政訓令有涉及所謂罷工權之規定，但因其政治、經濟及社會制度之限制，所謂罷工權應僅是一種政治宣示而已；而當時所謂罷工，也僅是國（公）營企業中之勞工，對代表國家行使經營管理權之幹部的管理及作為的一種抗議或抗爭的行為。自其於1980年代經濟開放之後，大陸地區企業經營方式漸趨向於個人私有財產制之自由經濟模式，勞資糾紛因而迭有發生，罷工事件也屢有所聞。故大陸學者已有多人主張大陸亦應訂有明確之罷工規範。本文作者，亦有同感。本文作者認為美國、德國之相關罷工規範，可資做為台灣及大陸地區處裡罷工問題之參考；海峽兩岸在建構罷工法律規範時，美國及德國之罷工法制，均具參考價值。

This is a comparative study of the labor law rules regarding strike action and lockout in the U.S., Germany, Taiwan and the mainland China. Both the U.S. and Germany are industrially and economically well developed. Industrial relations are a matter of great importance and have a very long history of development in both countries. Labor law in the U.S. and Germany, thus, is very comprehensive in contents and quite adequate for the complexities for the governance and management of the interaction between the management and the labor. As far as strike by labor is concerned, both the U.S. and Germany have developed over the years a quite concrete and wide-ranging set of governing legal rules. The rules in regard to strike in the U.S. are mostly created by federal labor law, such as the Norris─LaＧuardia Act, the Wanger Act and the Taft-Hartley Act, and judicial decisions by the U.S. Supreme Court and the awards by the National Labor Relations Board. Several important principles and rules such as the ally doctrine, hot cargo agreements, common situs rule and the Moore Dry Dock standard, have been established for the regulation of strike action in the U.S.。There are differences in legal protection in the U.S. for those who are engaged in an unfair labor practice strike and those who participate in an economic strike. In Germany, right to strike is very well guaranteed and protected by law. Most of the rules regarding strike are provided for by federal labor legislation and decisions by the Federal Constitutional Court and the Federal Labor Court. There are several very important, specific and detailed legal rules for the regulation of strike actions in Germany. These rules include the principle of social adequacy, the principle of proportionality, the peace obligation, ultima ratio and the fairness principle. Thus, in general, in Germany it could be said that the regulation mechanism for strike is quite adequate. This paper also discusses the defensive lockouts and the offensive lockouts and whether or not they are allowed in both the U.S. and Germany. In Taiwan, right to strike is protected and how a strike should initiate and proceed is governed by the Trade Union Law which was originally enacted in 1933 and has proved to be quite inadequate for dealing with the increasing difficulties and problems resulting from the strike actions which are becoming more and more common and frequent. Efforts have been made to create a set of applicable and up-to-date legal rules for the regulating of labor strikes since the 1990’s. Three different revision drafts (the 1991, 2002 & 2007 revision draft of the Labor Dispute Settlement Law) in regard to rules on strike have been passed and submitted by the Executive Yuan (the Cabinet) to the Legislative Yuan (the Parliament) for consideration. Unfortunately the Legislative Yuan has failed to complete the necessary revision legislative procedures for the above-mentioned revision drafts. Thus, up to now, those rules as provided for in the Trade Union Law are the only applicable governing principles for strike in Taiwan. The mainland China used to adopt the co-called Socialist economic system, thus almost all of the industries were nationalized. The so-called strike actions, if any, in fact were just protests and demonstrations by the workers against the stateappointed managing personnel and party cadre. However, since it started economic reform and liberalization, the mainland China has run into increasing number of incidents of labor unrest, most of them are strikes in fact. Up to now, there is no legislation or judicial decision with regard to strike in mainland China. Thus, there are talks and suggestions by the academic circle in China to establish necessary governing legal rules for labor strike through legislative enactment. The author of this paper is also of such an opinion. In its conclusion, this paper calls upon the Legislative Yuan in Taiwan to promptly take action in the necessary legal revision procedures for the establishment of concrete and specific governing rules for strike action so that strike and lockout in Taiwan would have a workable and up-to-date set of rules of the game to follow. This paper is also of the opinion that since the legal rules governing strike action both in the U.S. and Germany are well-developed, adequate and workable, they could be adopted and followed both in Taiwan and the mainland China both for dealing with problems regarding labor strike and for the creation of specific legal rules on strike.