船員勞動契約締結之保護規範與實務爭議：我國與日本現行法制比較分析的視角

Protective Policies and Practical Disputes Associated with Establishing Labor Contracts for Seafarers: Perspectives for Analyzing and Comparing Existing Policies between Taiwan and Japan

就我國現行法律之適用上，由於船員法乃勞基法之特別法，就船員勞動關係之最低基準保護上，若非屬於船員法特別排除勞基法規範之適用者，則當然有回歸勞基法之適用。本論文探討之主題乃在於後者（非漁船）船員之勞動契約締結於制度規範與實務上所生爭議之探討。然緣於上述海上工作者於法律適用上之複雜性，不僅於內國勞動者保護法律之體系架構下具有多重的法律適用關係，同時亦適用於海上國際勞動保護法之體系，以致近年勞動權利意識逐漸提升的船員與船運公司之間頻生勞資爭議事件，其中特別是包括船員勞動契約締結的型態與法律適用關係。研究目的在於釐清船員勞動契約性質與法律適用所生爭議，於研究架構與脈絡上，首先說明船員勞動基準保護所適用之法規範體系，其次則進一步指出船員締結勞動契約是否為定期或不定期所生爭議於國內相關法律規範之解釋適用，特別是勞基法與船員法之適用與交錯關係，同時，另自比較法之觀點，就我國船員法立法當時作為參照對象之一的日本船員法，說明該國現行相關制度規範與實務之爭議問題，以期作為我國未來政策立法之借鏡。

According to the current legislative policy, Taiwanese maritime workers are classified into two categories, fishing vessel crew members and non-fishing vessel crew members. This helps properly apply the labor protection rights to the members based on the Crew Law. Although seafarers of commercial ships or those who work in ships not engage in fishing are excluded by the Crew Law, they all are protected under the current regulations of the Labor Standards Law. The Seafarer Law is a special law established under the Labor Standards Law, which offers minimum basic protection of seafarers’ labor relations. Those who are qualified for the terms of the Labor Standards Law should be included in the application of the Labor Standards Law. "The Crew Law", established in 1999, could be applied to workers who were not engaged in fishing operations. Awareness of the trend and importance of international labor protection standards while involving international affairs, Article 89 under the Crew Law emphasized the applications of the rules, standards, or recommendations established in relevant international conventions or agreements. The purpose of this paper is to discuss the established rules of the labor contracts for the non-fishing vessel crew members as well the disputes arisen from the practice. Due to the complexity of legal applications, there are multiple applicable legal relations existed in the domestic labor protection laws, and several international maritime labor protection laws are also applicable to the workers. Since the awareness of labor rights has increasingly arisen, more labor disputes, formats and legal applications of seafarers’labor contracts are generated between seafarers and shipping companies. The purpose of this paper is to clarify the nature of seafarers’ labor contracts and the disputes arisen from the application of law. First, explaining the legal ruling systems applying to the protections of seafarers’ labor standards. Secondly, it is necessary to indicate whether the labor contracts made for seafarers are fixed term or not, especially when disputes arisen over the interpretation and application of relevant domestic legal terms related to the Labor Standards Law and the Crew Law. For the perspective of comparative law, when referring Japanese Crew Law to the legislation of Taiwanese Crew Law, there were some controversial issues existed in Japanese current legal system and practices. The findings can be referenced for future improvements of policy legislation in Taiwan.