我國繼續僱用定暫時狀態處分實務運作之觀察──兼論德國之相關規範

我國「勞動事件法」自109年1月1日開始施行，其中第四章保全程序即有迥異於民事訴訟法之規定而備受矚目。本文以本法施行前二年（107年～108年），及施行後二年（109年～110年）之裁判為對象，觀察我國於本法實施前、後勞工依第49條聲請繼續僱用定暫時狀態處分實務之運作狀態，有幾點發現：本法施行後獲得裁准之比例明顯大幅增加，確實改善過去勞工依民事訴訟法聲請定暫時狀態處分不易的問題，法院之審酌也從過去以喪失工資（經濟利益）是否無法維持基本生活需要為中心，轉為於勞工有勝訴之望，且雇主繼續僱用非顯有重大困難，即依勞工之聲請命為定暫時狀態之處分，無須考量勞工是否有無法維持基本生活之需求；審酌之利益也包括因喪失工作自我實現人格受到之影響。至於「勞工有勝訴之望」之認定，多數之見似未有以本案訴訟需有較高勝訴蓋然性之必要，甚且從雇主之終止行為，如其「合法性有疑義者，即堪認勞工就本案訴訟有勝訴之望」，而為准予繼續僱用之裁定。而從法院裁定中「雇主拒絕受領勞務即可認有權利濫用之情事，是此情形下即不得拒絕受領勞務」、且「繼續僱用之處分內容，不僅單純暫定勞雇關係存在之形成性質，尚包含『雇主需繼續雇用』之給付性質在內」之論述，應可解讀為如同學者所言，勞動事件法第49條之規定創設契機，先在程序法上肯認繼續僱用定暫時狀態處分之容許性，派生具體之繼續僱用請求權，更加催化實體法之開展可能性。

In Taiwan, Labor Incident Act (hereinafter referred to as “the Act”) was implemented on January 1, 2020. Chapter 4 Provisional Remedy Proceedings of the Act garners intense attention because it is distinct from the provisions of Taiwan Code of Civil Procedures. This paper was based on judgments in the 2 years prior to the implementation of the Act (2018-2019) and the 2 years after the implementation of the Act (2020-2021) to observe the practical operations of workers “motion for continuous employment temporary status quo injunction according to Article 49 of the Act. The following findings were identified: After the Act was implemented, the proportions of motion cases being granted increased substantially after the implementation of the Act. The implementation of the Act improved workers” previous difficulties in issuing motions to attain injunction of temporary status quo according to the Taiwan Code of Civil Procedures. The court changed its deliberation basis from whether workers “loss of wage (economic benefits) will lead to their inability to maintain daily living needs to whether a worker ‘has a chance to prevail, and that the employer has no major difficulties in continuously employing the worker;’ that is, ‘the court may order a temporary status quo injunction, based on the worker's motion.’ The court needs not to consider whether the worker can maintain their daily living needs any more. The benefits to be deliberated include the effect on the worker’s self-actualization personality because of loss of work. The recognition of workers” “chance to prevail” has not seen the necessity of higher probability to prevail in litigation of such cases. If the employer’s termination of employment of a worker may raise legal concerns, the worker’s chance to prevail in the litigation can be recognized and the ruling of continuous employment can be granted. In addition, the court ruling stating “employer refusal of accepting working provided by the worker can be recognized as the existence of abuse of rights; under such a circumstance, the employer must not refuse accepting working provided by the worker” and the discourse of “the injunction of continuous employment not simply determines the forming properties of the existence of temporary employment relationship, but also includes the payment properties in employer’s continuous employment of the worker” can be interpreted and anticipated as claimed in theory that the provisions of Article 49 of the Act were established to recognize the permissibility of temporary status quo injunction of continuous employment through procedural laws, derive concrete rights to motions of continuous employment, and promote the possibility of developing substantive laws.