定暫時狀態處分與失業給付之交錯關係

The Interleaving Relationship between Provisional Injunction Maintaining a Temporary Status Quo and Unemployment Benefits

我國於2020年施行勞動事件法後，除加快勞工與雇主間之確認僱傭關係訴訟之判決進程，亦同時使法院得依勞工之聲請，於確認勞工具有勝訴之望、雇主繼續僱用未有重大困難時，為「繼續僱用」、「給付工資」之定暫時狀態處分，使勞工得以受到雇主繼續僱用並受領工資，藉此保障其本身於訴訟期間之經濟安全。
然於我國過往多數實務見解中，因勞工未具有「事實上繼續僱用請求權」，亦即縱使法院命雇主須繼續僱用勞工，然只要雇主堅持不為「事實上繼續僱用」，法院亦對雇主無可奈何。此時，勞工雖仍受領雇主所給付之工資，然亦可能於敗訴確定後遭到雇主以勞工未實際提供勞務，請求返還其所受領之工資。使得勞工亦不敢將其所受領之工資用以維持自身生存需求，並同時落入類似失業者之狀態。
而失業給付係保障失業者於失業期間免於陷入經濟不安全之局面，然於雇主拒絕於訴訟期間繼續僱用勞工之情況下，此時，失業給付與定暫時狀態處分應如何協調保障勞工之經濟安全，即為本文所欲討論之重點。

After the implementation of the Labor Incidents Act in 2020, in addition to accelerating the process of the confirmation of the existence of employment relationship, it also allows the court to impose temporary status sanctions such as ''continuing to hire'' and ''paying salary'' on the workers’application when it is confirmed that the workers have a chance of winning the lawsuit and the employers have no significant difficulties in continuing to hire, so that the workers can continue to be employed by the employers and receive salary, to ensure its own economic safety during the litigation period.
However, in most previous court rulings in Taiwan, workers don’t have the ''right to ask employers continue hiring actually'', even if the court orders the employers to continue hiring workers, the court has no choice but to do so as long as the employers refuse to continue hiring actually. At this moment, although the workers still receive the salary by the employers, they may also be sued by the employers for not actually providing services and requesting a refund of the salary received after the lawsuit is confirmed. This makes workers hesitant to use the salary they receive to sustain their own survival needs, and at the same time fall into a state similar to that of the unemployed.
Unemployment benefits protect the unemployed from falling into economic insecurity during the unemployment period. However, if the employers refuse to continue to hire workers during the litigation period, the workers may still have the need to claim unemployment benefits. At this moment,how to coordinate unemployment benefits and provisional injunction maintaining a temporary status quo to ensure the economic security of workers, all of that are the purpose of this article.