| 摘要: | 本文擬從三個有關勞動者權益的民法條文，檢討現行民法是否具備以保護勞動者為核心價值，以公允的私法作為國家社會安全體系之根本。民法第187條規定僱用人就受僱人職務上的侵權行為，對於第三人連帶負損害賠償責任，同時規定僱用人於賠償後對於受僱人有求償權，未就受僱人輕過失之行為予以排除適用，較之公務員，顯失公平。民法第483條之1，規定受僱人服勞務，其生命、身體、健康有受危害之虞者，僱用人應按其情形為必要之預防，應解為受僱人有權請求僱用人為積極之預防措施，承認該條不僅為消極之保護義務，更為僱用人之從給付義務，始符民法應具保護勞動者為核心價值之時代意義。民法第487條規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。但書規定受僱人因不服勞務所減省之費用，或轉向他處服勞務所取得，或故意怠於取得之利益，僱用人得由報酬額內扣除之，通說認係法定扣除之規定，殊嫌消極，本文認為該條扣除權為僱用人之形成權。最後簡要介紹最新制定之勞動事件法，以支持受僱人在與僱用人間正當的爭議處理程序，以免民法應以保護勞動者權益作為核心價值的期許淪為空談。
Inspired by a letter from a reader of Liberty Times on Labor Day 2022 calling on convenience stores to provide a chair for store employees to take a rest intermittently during the work day, this paper inspects the three Civil Code provisions concerning the rights and interests of the workforce. Article 187 of the Civil Code provides that the employer shall be jointly and severally liable for damages to a third party caused by an employee's tortious act in his or her work. At the same time, it stipulates that the employer has the right to claim indemnification from the employee after making compensation, and such right does not exempt the situation where the tortious act was a result of the employee's minor negligence. Thus, the employee who performs his or her duties for the benefit of the employer, and is generally in weaker economical position, will bear the risk of ultimate liability for minor negligence alone. Article 483-1 that was added to the Employment Chapter of the Civil Code, which provides that if an employee's life, body and health are in danger in the course of performing labor service, the employer shall take any necessary precautions according to the particular situations. It is commendable to enable employees to claim damages when the employer violates the duty of prevention. However, it should be recognized that the legislative intent is not only to compensate for damages after an incident, but also to focus on prevention before an incident. Therefore, the employee should be allowed to request the employer to take proactive preventive measures. Article 487 of the Civil Code concerning delay in employer's acceptance of labor services provides that the employee is not obliged to make up for the labor services but can still claim remuneration. However, the proviso stipulates that the employer may deduct from remuneration the expenses saved by the employee for not providing the labor service, or the benefits that the employee obtained from elsewhere for providing labor service, or the benefit that employees should have obtained but deliberately agreed not to do so. The general view is that it is a statutory deduction right. However, it does not conform to the core value of labor protection of the civil law. Therefore, Article 487 should allow the employer to decide whether to exercise such deduction right. Finally, the paper briefly analyzes the newly enacted Labor Incident Law to support the protection of procedural justice in disputes between employees and employers, so as the expected civil law with the protection of labor rights and interests as the core value not become an empty talk. |
