雇主違法解僱時勞工之給付不能與工資危險負擔──評最高法院107年度台上字第412號民事判決

Employee’s Impossibility of Performance and Risk of Loss on Wages in the Event of Wrongful Dismissal: Review of the Supreme Court 2018 Tai-Shang-Zi No. 412 Civil Judgement

我國實務上主要係以民法第487條本文規定，作為違法解僱期間勞工雖未服勞務卻仍得向雇主請求工資之依據。然而，於民法第487條規定外，違法解僱期間的工資危險問題是否亦能、甚而是否有必要依據民法債總危險負擔之規定處理？實有探究空間。本文希望藉由最高法院107年度台上字第412號民事判決，一面說明依債總危險負擔規定處理之可能性，一面檢討實務長期以來僅側重於適用民法第487條規定所發生之問題。若實務能夠充分意識並妥為運用債總危險負擔之規範，即能在符合既有民法規範暨理論之前提下，公平妥適地解決違法解僱期間之工資危險問題。

Practically speaking, Article 487 of the Civil Code serves as the primary legal basis in Taiwan that an employee may demand for his remuneration without being bound to perform the service during a period of wrongful dismissal. However, outside of the stipulations of Article 487 of the Civil Code, there is also a question of whether the issue of wage risk during the period of wrongful dismissal could be, and must be, handled based on the risk of loss rule under the regulations related to general obligations in the Civil Code? There remains some room for discussion on this argument.This paper will, based on Supreme Court 2018 Tai-Shang-Zi No. 412 Civil Judgement, explain the possibility of solutions pursuant to the risk of loss rule under the general obligations of the Civil Code, and evaluate the problems that result from long-term overemphasis on the application of Article 487 of the Civil Code in judicial decisions. In practical settings, if full awareness and proper implementation of the risk of loss rules under the general obligations of the Civil Code can be ensured, then the issue of wage risk during the period of wrongful dismissal may be equitably solved while remaining in compliance with the existing statutory requirements and theories of the Civil Code.