從公司治理論員工權益之保護—以員工代表制檢討為例

Abstract

我國公司法之研究重心,不論是公司內部之機關權限劃分,或是公司併購議 題,多集中在董事會與股東會之關係,尤其以董事之忠實義務(fiduciary duty)著 墨甚深。往往忽略公司組織中之員工角色,本文試圖將員工之角色拉進公司法之 規範,使公司法的關注焦點能注入員工權益之討論。 於第二章,本文回顧目前公司法中關於員工之相關法規範,員工之相關規定 都與金錢連結。然而,考慮員工之權益,公司法僅有財產式參與是否足夠?本文 提出員工參與之理論作為基礎,分析我國公司法中員工僅有財產式之參與有所不 足。 以員工參與作為理論基礎,賦予員工參與之手段,最直接之方式屬員工董事 或員工監察人之制度。比較法上有相同之制度設計,所以第三章分析公司法是否 要移植此制度。本文認為我國毋需於公司法中強制規定員工董事之制度,應留待 公司自行決定。 惟員工參與並非僅有直接參與經營階層一途,本文從德國、英國之發展觀察, 二者皆在工會以外,增加員工與公司合作之可能性。我國現行法制,亦有相類似 之設計,即勞資會議。因此,本文認為應該在既有之勞資會議上,確保勞方代表 所擁有之資訊權、商議權能落實,促使勞資和諧。 最後,本文在公司治理之基礎上,提出幾點建議,使保護員工之權益之目的, 不會淪為純粹的公司經營負擔。

In Taiwan, corporate law is primarily about shareholders, boards of directors and managers, and the relationships among them such as fiduciary duty. Occasionally, corporate law concerns itself with bondholders and other creditors. Only rarely, however, does a typical corporate law course or a basic corporate law text pause to consider the relationship between the corporation and workers. This thesis tries to consider employee rights into corporate law. This thesis in chapter 2 reviews corporate law about the Article of employees, that is related to asset capital. All articles of employee in corporate law is employee participation with asset. Is that enough to employee? This thesis suggests employee involvement as a basic theory, analyzing the pros and cons of Taiwan corporate law. According to employee involvement, it's an intuition legislated for labor director/employee director in corporate law. It's a common institution in many European countries such as Germany and Netherland. Thus, this thesis in chapter 3 analyze whether it is translated labor director/employee director to Taiwan's corporate law or not. In my conclusion, it is not appropriate to make labor director/employee director as a compulsory rule in Taiwan's corporate law. The rule of labor director/employee director is at company discretion. Despite that labor director/employee director is a way of employee involvement, work councils, which is other way of employee involvement, provide a platform for employee and company to cooperate. In Taiwan jurisdiction, we have the same system as work councils. Therefore, this thesis in chapter 4 suggests that we shall improve our work councils existed system. It makes sure that employee can claim information right and consultation right. At same time, it helps company and employees have a good relation of employment. Last but not least, this thesis based on corporate governance proposes few advisory amendments to facilitate beneficiary interest of employee and it can avoid increasing cost of company in order to fit the amendments.