對釋字第785號之評析：以健康權作為加班費核發的依據是否合宜？

Is It Appropriate to Use the Health Right As the Basis for Overtime Pay in the Judicial Interpretation No. 785?

司法院釋字第785號解釋令，首度將健康權視為憲法的基本人權，是憲政發展的里程碑。不過，該解釋令將健康權作為政府發放公務員加班費的依據，是否產生公務員得以健康為由，拒絕加班的矛盾呢？本研究發現，公務員既然沒有拒絕加班的權利，只能事後針對此工作指派的妥適性提出救濟，那麼以健康權作為請求加班費的依據，就有待商榷；本研究建議應以公務員為促進公共利益的加班所致的特別犧牲為由作為加班費與之補償准據。此外文獻研究發現，每日的標準工時與健康無關，而與社會經濟發展有關；再者，公私部門薪資均係有勞務即有所得，加班費性質則因業務性質而相異，私部門的加班費是共享資方的經濟果實，公部門的加班則在於促進公共利益。

The implementation of Judicial Yuan No. 785 is a milestone in the development of constitutionalism, and it is the first time that the right to health is included in the constitution as a basic human right. However, it’s difficult to explain, the supervisors to ask civil service to do overtime for keeping public interests for dealing with dangerous conditions, however could they to refuse by using the excuse of the right to health? The answer is “No” by Ministry of Civil Service because of promotion of public interest. So overtime works belong as the special sacrifice. That’s why this paper suggests the overtime pay should be on the reason of basis of the special sacrifice but the right to health. In addition, this paper found the daily standard working hours depending on social and economic development but the health. The nature of wages of the public and private sectors are based on labor services, however the nature of overtime pay is various. The overtime pay of labor is profit sharing from employer, while the overtime pay of civil service is promotion public interest.