勞工保險因雇主違法解僱而退保後之效力——評臺中高等行政法院104年度簡上字第66號判決

The Effectiveness of the Labor Insurance after the Insured Units Withdraw from Insurance Coverage due to the Employer's Illegal Dismissal—Interpretation and Comments on the Judgement of Taichung High Administrative Court Year 2015 Chien-ShangTze No. 66

依勞保條例第11條的規定，勞工受僱為勞工保險效力的構成要件事實。僱用關係以勞動關係為基礎。雇主因違法解僱而受領遲延，仍有給付工資的義務。經法院判決確認勞動關係繼續存在，僱用關係仍然繼續存在。勞工保險關係也應繼續存在。勞保局應該撤銷違法的退保行政處分，回復被保險人的法律地位。被保險人提起行政救濟，訴願機關與行政法院應撤銷勞保局退保的行政處分。

According to the Article 11 of the Labor Insurance Act, the fact that worker had been employed is as the essentials for the effectiveness of labor insurance. Employment relationship is based on the employment contract. The employer who dismissed the employee illegally, had delayed accepting the services, and the employee may demand for his remuneration. After the court decided that the Employment relationship continued to exist, the labor insurance relationship certainly continues to exist. The Bureau of Labor Insurance shall revoke the illegal administrative act for withdrawing from insurance coverage, and shall restore the insured employee to the status quo before he was dismissed. If the Bureau of Labor Insurance had refused to do so, the insured employee may file administrative relief. The appealing agency and the administrative court shall revoke the previous administrative act for withdrawing from insurance coverage.