勞動契約中違約金條款之合法性探討

The Study of Liquidated Damage Clause in Employment Contract

雇主為了確保契約之履行，常於勞動契約中使用違約金條款，當勞工不履行義務或違約時，依約應給付一定金額於他方。針對勞動契約中違約金條款之合法性問題，本文先從違約金之意義與目的出發，檢視勞動契約中常見之違約金條款後，認為基於勞務具有不可強制執行之特性，應允許當事人於勞動契約中為違約金之約定。再者，本文從定型化契約控制之角度探究違約金條款之效力，除了統整國內法院裁判實務之現況外，更藉助德國法制之經驗，進一步反思我國實務見解之妥當性。本文以為違約金條款本身可獨立作為審查之客體，法院應依民法第247條之1規定審查其效力，只有當違約金條款未被宣告無效之情況下，法院始得依據個案狀況酌減違約金。一數額過高之違約金條款，其可能構成「過度擔保」，若該約款對於相對人而言屬於顯失公平，將導致約款無效之結果。此外，當約款內容欠缺明確性，使相對人難以理解時，其可能因違反「透明性原則」，而應被判定為無效。

To ensure the performance of the contract, employers often apply the terms of the breach of contract: when a labourer fails to perform or defaults, a certain amount shall be paid to the other party in accordance with the abovementioned contract. Looking at the legality of the breach of contract clause in labor contract, this article, firstly, begins with the meaning and purpose of the breach of contract. It is followed by examining the common default payment clause in labour contract. The article then considers that the parties should be allowed to agree on the breach of contract in labor contract based on the unenforceable characteristics of labour service. Moreover, this article explores the validity of the breach of contract clause from the perspective of the control of stereotyped contract, in addition to the current situation of the practice of ruling the domestic (Formosan) court, but also to further reflect on the appropriateness of our practical opinions by borrowing the experiences and literature of the German legal system. This article holds that the breach of contract clause itself can be independently used as an object of examination, and that the court shall examine its validity in accordance with 247-1 ZGB. Only in the event that the breach of contract clause is not declared, the court may beginning of the case to, on a case by case basis, reduce the breach of contract. An excessive amount of breach of contract clause, which may constitute an ''over-collateralised'' that, if it is manifestly unfair to the relative, will result in the invalidity of the contract. In individual cases, a contractual penalty for breach of the transparency requirement is ineffective. Additionally, when the content of the covenant lacks clarity, which makes it difficult to understand, it may be found null and void for violating the ''principle of transparency''.