從在學關係論大學學生校內勞動行為之法律定位

The Legal Status of Students’ Labor Practices in Colleges based on Studentship

在我國各級學校教育過程中，學生或多或少均曾從事校內打掃、值勤及協助教學事務等若干實質勞動行為；然而，或因此等「工作」多不存在勞務對價之外觀，而向來被視為基於達成教育目的之勞動教育或空白課程。惟2012年初，因部分兼任校內助理之大學學生申請籌組工會，而正式揭開此等勞動行為定位爭議之序幕；渠等由學生兼任的研究助理、教學助理或臨時工讀生，是否與學校間存在僱傭關係？乃在後續行政爭訟中成為主要爭點。據此，本文以在學關係為基礎，並透過文獻探討、法令分析及教學現場訪查等研究過程，歸結認為學生於校內所從事的各種勞動行為，原則上應推定為基於公法在學關係之學習活動，而唯有明顯與學習活動無關者，方才例外將其類歸為基於私法關係之勞動行為；至於其間是否具有經濟報酬，則亦不應成為關係屬性之認定判準。

In primary and secondary education, students more or less are involved in labor practices such as cleaning, being on duty or assisting teaching. Yet, mostly because students are not paid for the work, those practices are often viewed as labor education or vacant curriculum. In early 2012, some college students who work part-time as research assistants submitted their application to form a labor union. It was how the struggle to define labor on campus was initiated. One of the controversial issues in the process of administrative litigation is: whether there is any employment relationship between students and school when they work as part-time research assistants, temporary workers or teaching assistants. This remains a controversial issue in the Administrative Court. Built upon studentship, this study was conducted through literature review, legal analysis and visits to the sites. It concluded that the various labor practice on campus should be considered as learning activities of studentship in public law. Only when the labor is obviously irrelevant to learning can it be considered as employment in private law. Whether students receive a stipend cannot be used to determine the existence of an employment relationship.