論違法解僱下僱用人之受領遲延責任與危險負擔法理之交錯：以解析我國實務見解及日本法之比較為中心

Employer's Delay in Acceptance or Risk of Loss in Unlawful Dismissal Cases: A Comparative Study on Japan, and the Judicial Decisions of the Civil Code §487 in Taiwan

受僱人未服勞務時，原則上即無報酬請求權（no-work-no-pay原則）。然而，我國民法第487條本文明定，「僱用人受領勞務遲延者，受僱人無補服勞務之義務，仍得請求報酬。」為前述未服勞務即無報酬原則之例外規定。但同條並未排除同法第267條於給付不能可歸責於僱用人時，受僱人方得請求報酬之危險負擔相關規定之適用，則如何判斷僱用人是否陷於受領遲延抑或係受僱人無故不服勞務，因涉及受僱人報酬請求權之有無，攸關受僱人之生計及僱用人之權益，為我國學說及實務上重要的課題。本文擬聚焦於雇主違法解僱時，就實務見解對僱用人受領遲延要件之認定，進行分析整理，以探討雇主何時陷於受領遲延、勞工是否仍須提出給付等長久以來迭生爭議之問題。最後透過日本法之比較研究，以日本法為借鏡，獲得於受僱人給付不能時或應依危險負擔法理來認定報酬請求權之有無之啟示。

If an employee has not performed his or her promised work, he or she will not have a claim for remuneration, which is so-called the doctrine of no-work-no-pay. However, according to the Civil Code §487, if the employer delays accepting the performance, the employee may demand for his remuneration without being bound to perform the service subsequently. It is the exception of the doctrine of no-work-no-pay. On the other hand, according to the Civil Code § 267, where ＂performance of the service is impossible＂, the existence of the employee's right to demand for his remuneration depends on whether the impossibility is ＂attributable to the employer＂. Thus, how to distinguish the employer's delay to accept the performance tendered to him from the impossibility of the employee's performance is an important issue because it will decide if the employee has the right to claim for remuneration. Through an analysis of the Japan experiences and the reflection on the judicial decisions of the Civil Code §487 in unlawful dismissal cases in Taiwan, this research will focus on the controversial issues, such as when the employer delays accepting the performance and if the employee still has to tender the performance, and try to solve them by the doctrine of risk of loss.