| 英文摘要 |
After the implementation of the new Labor Law in 2011, the union movement began to prevail and labor unions are also unafraid to try to strike in labor disputes. During the strike, it is inevitable that there will be a need for picketing. The rule of the picket line, which is stipulated in Article 54 (1) of the Act for Settlement of Labor-Management Disputes states that “A labor union shall not declare a strike and set up picket lines unless the strike has been approved by no less than half of the members in total via direct and secret balloting.” This is the first time that the legislation officially recognizes the picket line in Taiwan. However, the current law does not clearly indicate the criteria for judging the legitimacy of picketing, so that the implementation of picketing has repeatedly caused controversies and disputes. For example, with regard to Homebox v.s. Union in 2017, the implementation of picketing had led to the physical conflicts between the government, the labors, and the employers. It is therefore an important issue to judge the legitimacy of the picketing. Based on the research and analysis of Japanese jurisprudence, this article clarifies the differences between Japanese academic circles’ views concerning the peaceful persuasion theory and the acceptance of obstruction by physical force theory. Furthermore, it summarizes the judgments of Japanese courts by observing the Supreme Court’s evolution from the earliest peaceful persuasion theory, various circumstances theory to the aspects of the whole legal order as a reference for the development of academic theory and court’s judgment in Taiwan. Finally, through the research, it will review the literature on the picketing in Taiwan and explore the benchmarks of assessing the legitimacy of picketing suitable for sociopolitical atmosphere and conditions in Taiwan. This research argues that the criteria for judging the legitimacy of picketing must consider the history and confrontations between the labor and management, the object of the implementation of picketing, and the comprehensive inspection and identification of the means of anti-social intensity and the danger of actual harm.
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