日本鎖廠法理之研究—論雇主鎖廠行為之法律根據與正當性界限

Abstract

我國勞資爭議處理法對於勞資雙方之爭議行為均有所定義，然相對於勞方爭議行為多為學界、實務所討論，資方之爭議對抗行為則較少受到關注。由於勞資爭議處理法之修正，勞方爭議行為與爭議權受到更多的法律保障，發生之次數亦逐漸增加，相應地本文想像將來雇主採取爭議對抗行為之可能性亦隨之提升。本文以雇主鎖廠行為作為研究客體，在我國學說、實務討論有限之背景下，以日本鎖廠法理發展作為比較法上的觀察對象。 本文首先探討日本法對於鎖廠之法律根據的討論，發現日本之學說與實務係以憲法爭議權保障所蘊含的衡平原則作為雇主鎖廠權之法律根據。進而，本論文探討日本於鎖廠之各個具體法律爭點的爭議並整理出觀察後之結論，包含鎖廠係雇主拒絕受領勞務之行為，在成立要件上應採意思表示說、鎖廠之正當性要件包含防禦性與必要性、鎖廠之法律效果為雇主工資給付義務之免除，不具有物權效力等。 最後，本論文藉由上述日本法的觀察，試圖建立我國法下針對雇主鎖廠行為之可能的解釋論以及修法方向，冀望透過比較研究建立一套我國雇主鎖廠行為發生時法律上的因應機制。

Act for Settlement of Labor-Management Disputes in Taiwan defines the dispute activities between labor unions and employers, however, compared to the activities by labor unions, which are mostly discussed by academics and practitioners, the activities by employers have received less attention. Due to the amendment of the Act for Settlement of Labor-Management Disputes, the labor's dispute activities and the right to dispute have been given more legal protection, and the number of occurrences has also increased gradually, and accordingly, this paper imagines that the possibility of employer’s dispute activities will also increase in the future. This article takes employer’s lockouts as the object of study, and under the background of limited discussion in Taiwan's doctrine and practice, it takes the development of Japan’s legal theory of lockouts as the object of observation in comparative law. The paper firstly explores the discussion on the legal basis of lockouts in Japanese law, and finds that Japanese doctrine and practice have taken the principle of equity embedded in the constitutional guarantee of the right to dispute as the legal basis of employers' right to lockouts. Further, this thesis explores the controversy over the specific legal issues of lockouts in Japan and organizes the conclusions from the observation, including the fact that lockouts is the employer's refusal to accept the labor, and should be based on the manifestation of intention in the constituent elements, the properness of lockouts includes the elements of defensiveness and necessity, and the legal effect of lockout is the exemption of the employer's obligation of paying wages, which does not have the effect of real rights, and so on. Finally, this thesis attempts to establish the possible interpretations and the direction of law amendment under the Taiwanese law for the employer's lockouts through the observation of the Japanese law mentioned above, hoping to establish a set of legal response mechanism when the employer's lockouts occur in our country through the comparative study.