承攬契約與勞動派遣區分基準之研究──以日本法經驗為中心

A Study on the Distinction Criteria between Contract for Work and Labor Dispatch －Focusing on the Japanese Legal Experience

勞動派遣係常見之非典型就業形態，亦是勞動力之僱用與使用分離模式之代表。本文認為，勞動派遣關係本身只是多元化勞動力運用之一種形態，並無好壞或對錯可言。但是，我國現行法對勞動派遣規範不足，針對如何區分業務承攬與勞動派遣亦僅有不具強制力之行政指導，實不足因應實務所需。相較之下，日本非但於職業安定法中直接禁止勞工供給事業，更明定只有合法的勞動派遣才能免除從事勞工供給事業之法律責任。從而，參考日本法之規定及實務、學說有關承攬與派遣區分標準之重要見解，儘速增訂於勞動基準法中，應該是短期內最重要課題。當然，就立法論而言，個人仍舊支持制定完整的勞動派遣專法，如此才能根本解決由勞動派遣所衍生之諸多法律爭議。此外，筆者必須強調，處理勞動派遣所生爭議時應謹守如後之重要原則，即企業於享有彈性所帶來利益之同時，不應該完全脫免其應原來應承擔之雇主責任，更不能將責任轉稼於毫無負擔能力之第三人。

Labor dispatch is a common form of atypical employment and represents a model of separating the hiring and utilization of labor. This article believes that labor dispatch itself is just one form of diversified labor utilization and cannot be categorized as inherently good or bad. However, the current regulations in our country regarding labor dispatch are insufficient, and the administrative guidance on distinguishing between contract for work and labor dispatch lacks enforceable power, which is inadequate for practical needs. In contrast, Japan not only directly prohibits labor supply businesses in the Employment Security Act but also stipulates that only legally authorized labor dispatch can exempt the legal responsibility of engaging in labor supply businesses. Therefore, it is of utmost importance to promptly amend the Labor Standards Law by referring to the provisions, practices, and significant insights regarding the criteria for distinguishing between outsourcing and dispatch in Japanese law. Of course, from a legislative perspective, I personally support the establishment of a comprehensive special law on labor dispatch, which would fundamentally resolve the various legal disputes arising from labor dispatch. Additionally, it is crucial for me to emphasize that when handling disputes arising from labor dispatch, the following important principles should be strictly adhered to: while companies enjoy the benefits brought by flexibility, they should not completely evade their original employer responsibilities, nor should they shift the burden of responsibility onto a third party with no capability to bear it.