非屬勞工之勞務給付者之交易條件保障規範──日本競爭法中之優勢地位濫用相關規範之啟示

Protection of Terms of Transaction of Non-laborers: Enlightenment from the Norms Concerning Abuse of Dominant Bargaining Position of Japanese Competition Law

在勞動型態多樣化之發展中，勞務給付者是否為勞工之判斷趨於困難，並成為近來備受關注之法律問題。若勞務給付者被認定非屬於勞工，基本上將無勞動法之適用，但是否即全無透過法律予以保護之必要性？或應仍具有保護必要性，只是保護程度、內容與勞工應有所不同？若肯定其保護必要性，則應透過何種方式給予需要之法律上保護？在臺灣，雖與勞工在保護程度上可能仍有所不同，但在勞工保險、職業安全衛生以及工會組織等部分，自營作業者並非全無勞動法令之適用與保護。然而，確實有一部分是明顯欠缺的，即勞務給付契約之交易條件保障。關於此點，日本同樣在尋找非屬勞工之勞務給付者之法律保護方式，而勞動法未必是唯一的途徑。日本制定有下請法，作為日本獨占禁止法中優勢地位濫用行為規範之補充法，而下請法之適用對象為承包特定工作之事業，下請法之具體規範內容則包含課予交付載明契約條件之書面約定之義務、給付期日之限制及遲延利息、禁止約定顯然低於市場行情價格之報酬等，近來則訂定自由工作者及事業間交易公平法，可見競爭法是日本近來對於非屬勞工之勞務給付者之重點保護方向。本文對於日本之優勢對濫用規範與下請法、自由工作者及事業間交易公平法等進行介紹與分析，並提出可能得以作為我國法借鑑之處。

With the development of the diversification of the performance of services, it has become difficult to judge whether the performer of service is a laborer, which has become a legal issue that has attracted much attention recently. Even though it may not be the same as that of laborers, is there no need to protect them through laws and regulations? If there is, by what means should the required legal protection be granted? In Taiwan, although the degree of protection may still be different from that of labor, in labor insurance, occupational safety and health, and trade union organizations, self-employed workers are not completely concluded from the application and protection of labor laws. However, there is indeed a part that is obviously lacking, that is, the guarantee of remuneration conditions in the service performance contract. In this regard, Japan is also looking for appropriate legal protection methods for non-labor workers, and labor laws are not considered to be the only way. Act against Delay in Payment of Subcontract Proceeds, Etc. to Subcontractors is enacted as a supplementary law to the regulations of prevention of abuse of superior bargaining position in Japan’s Antimonopoly Act. The application of the Act against Delay in Payment of Subcontract Proceeds, Etc. to Subcontractors is for businesses that contract specific work. The specific content of the regulations includes the obligation to deliver a written agreement that specifies the contract conditions, and the restrictions of payment date and delay interest, prohibition of agreeing on remuneration that is obviously lower than the market price, etc., and the Act against Delay in Payment of Subcontract Proceeds, Etc. to Subcontractors is considered to be a key point for the protection of non-labor protection in Japan recently. This article introduces and analyzes Japan’s regulations of prevention of abuse of superior bargaining position and Act against Delay in Payment of Subcontract Proceeds, Etc. to Subcontractors, and proposes some points that may be used as a reference for Taiwan law finally.