勞動事件法保全程序之研究——以解僱案件之定暫時狀態處分要件釋明為中心

Study on the Perpetuating Measures of Labor Incident Law:Interpretation of the Requirements of Provisional Injunction Maintaining a Temporary Status Quo in Terminative Cases

勞動關係具有相當人格、經濟及組織上從屬性，勞工常處於結構上弱勢地位，但勞工權益及勞動法體系卻又會隨著勞資雙方力量調整或對抗關係改變，此種複雜的流動性法律關係已然脫離傳統民法以債法概念建構之體系，不論是實體法或是程序法，勞動法皆有為特別規範之需求。我國於2018年11月9日立法院三讀通過勞動事件法，回應上開勞動爭議解決特別程序規範之需求，對勞動事件審理之諸多面向進行重大改革，但施行至今仍有許多整理規範或解釋適用上之爭議。對於能夠迅速給予勞工保障之暫時救濟程序，本文有志優先梳理勞動事件法第49條之相關爭議，希望提供實務上參考或依循之方向。
本文首先由勞動事件法之立法背景、目的與保全程序基本架構，分析並梳理勞動訴訟定暫時狀態處分要件與見解之沿革，整理存在分歧之爭議問題，於認定勞動事件為獨立制度之前提，確定勞動事件法第49條之要件具體內涵與判斷要素，不應涉及勞動事件法無關之要件與判斷要素，並進一步處理釋明問題，放寬釋明界線與裁決代替釋明範圍，同時明確勞工應釋明內容，給予勞工合理釋明負擔；此外亦確定裁定具體內容應以原職繼續僱用為原則，就此裁定內容，基於勞動事件法之立法目的，肯認強制執行之可能性。於上開討論基礎上，選擇與我國同樣無實體法上請求繼續僱用相關規範之日本為比較法參考對象，在了解日本法解雇案件定暫時狀態處分要件、類型及不同類型之判斷要素，並整理日本審判實務上就勞動事件特殊性所為之緩和措施後，以地位保全假處分之爭議問題為借鏡，補充與強化前開提及本文見解之論理基礎。此外，希望我國勞動事件法於適用上避免審理程序本案化減損保全制度迅速性與暫時性的特別價值，並期待我國以勞動事件法為開端，轉變勞動實體法與民事訴訟法勞動案件上對於勞動價值之觀念。

Labor relations are characterized by a high degree of personality, economic, and organizational subordination, and workers are often in a structurally disadvantaged position. However, the rights and interests of workers and the system of labor law change as the power of employers and employees is adjusted or antagonized, and this complex and fluid legal relationship has already departed from the traditional civil law system constructed on the basis of the concept of debt law, and there is a need for special regulation of the labor law, whether it is in the form of a substantive law or a procedural law. On November 9, 2018, the Legislative Yuan passed Labor Incident Law, which responded to the demand for special procedural regulations for labor dispute resolution and made significant reforms to many aspects of the adjudication of labor incidents, but so far, there are still a lot of disputes about the application of the regulations and interpretations. In order to provide timely temporary relief procedures for labor protection, this article aims to prioritize and sort out the disputes related to Article 49 of the Labor Incident Law, in the hope of providing practical references or directions to follow.
This article firstly analyzes the legislative background, purpose and basic structure of the preservation procedure of the Labor Incident Law, and combs through the history of the requirements and opinions of the provisional injunction maintaining a temporary status quo of labor litigation, and organizes the controversial issues of disagreement. On the premise of recognizing the labor incident as an independent system, this article determine the specific content and judgment elements of the requirements in Article 49 of the Labor Incident Law, and should not involve the requirements and judgment elements that are not related to the Labor Incident Law. This article also further deal with the issue of interpretation by relaxing the boundaries of interpretation and the scope of the award in lieu of interpretation, and at the same time, clarifying the contents of the interpretation that should be given by the workers to give the workers an interpretation of their burdens. In Chapter 4, the main text of the ruling on provisional injunction maintaining a temporary status quo under the Labor Incident Law was firstly organized and analyzed, and it was determined that the specific content of the ruling should be the continuation of employment in the same position, and the possibility of enforcement was recognized based on the legislative purpose of the Labor Incident Law. On the basis of the above discussion, this article choose Japan, which also does not have the same regulations on the request for continued employment in the substantive law, as a reference for comparison. After understanding the requirements, types and judgmental elements of different types of provisional injunction maintaining a temporary status quo in the terminative case in the Japanese law, and sorting out the mitigation measures in the Japanese trial practice in relation to the special characteristics of the labor incident, this article supplement and strengthen the above mentioned points by using the controversial issue of the status preservation leave sanction as a reference. In addition, it is hoped that the application of Taiwan’s labor law will avoid the present case from undermining the value of the rapidity and temporary nature of the preservation system, and it is also hoped that Taiwan will use the labor law as a starting point for changing the concept of labor value in labor cases in both the substantive labor law and the code of civil procedure.