私立學校年終獎金之法律性質分析：以台美勞動法令之認定比較觀察

The Legal Interpretations of the Year-end Bonuses Paid by Taiwan’s Private Schools: A Comparative Review on the Bonus with the Labor Laws of Taiwan and the U.S.

謝棋楠(C. N. Hsieh)

《科學與人文研究》 4卷4期 (2017/09) Pp. 43-63

https://doi.org/10.6535/JSH2017094404

摘要

教師待遇條例中對獎金的規範是與本薪與加給規範為教師待遇給與名目之一。惟該條例對獎金之規範並不如對本薪與加給，私立學校被要求要比照或準用公校的本薪與加給而為給與。私立學校獎金由學校自行訂定。因而私校年終獎金是否必須如公校給予，產生疑義。以文義言，該規定應屬於強制私校必須比較公校而必須有自行訂定之含年終獎金之獎金制度。而非可以完全沒有如公校有發的含年終獎金之 獎金制度。而比較於勞動基準法的年終獎金制度，則有兩元制度。其29條之制度以限於有盈餘為限使給與。其勞雇間即使有合約約定，也不一定符於該條可以領取該年終獎金要件。其性質為恩惠性給與。另一方面，若該法下年終獎金約定之給與，符合勞動對價性與經常性給與之意義，則其合於工資之意義的給予，則為必要給與，不拘泥於文意。私校並無營利可能，無法基於盈餘而給年終獎金，私校年終獎金，與該29條制度本質不同。惟其仍可能因給予方式不同，而有兩元之分。以美國勞動基準制度下，以該獎金之給與為雇主有無裁量判斷餘地而區分該獎金為恩惠性或為具工資性質之給與。我國教師待遇條例下之年終獎金之法律性質之認定制度，應採擇其制度以分析認定年終獎金之性質。而因為契約、協議、公告、承諾、慣例、慣行做法或具有可衡量標準，而給與的獎金，其性質有如工資，為必需給予之獎金。

關鍵字

年終獎金 ； 勞基法 ； 裁量判斷餘地 ； 本薪

並列摘要

Teacher Remuneration Act provides bonus is a type of pay the same as the pay of base-pay and extra-allowance together constituting the package of total compensation to teachers. The Act does not require private schools pay teachers bonuses as the way it requires private schools pay base-pay and extra-allowance to teachers that the schools should apply the way that public schools pay base-pay and extra-allowance to their teachers. Private schools shall make measures deciding how to pay bonuses. It creates a question whether or not private schools shall not pay year-end bonuses to teachers when public schools have to pay bonuses. By the meaning of the Act’s provision, private schools have to establish measures governing their payment of bonuses like what public schools do rather than have right not to pay year-end bonus. There are dual nature in terms of year-end bonus paying institutions under Taiwan’s Labor Standards Act. Under article 29 of the Act, the year-end bonus is given only when the company enjoy profit-earnings and not in debt. The parties shall not by themselves decide whether the bonus to be paid. The bonus paid under the article 29 has the nature of gratuity. On the other hand, if the parties enter into contract governing the regular paying of year-end bonus as the return of work, the year-end bonus constitute part of wage. Employer is obligated to pay the bonus. The pay called year-end bonus is not a problem. Private schools are non-profit institutions. The article 29’s year-end bonus shall never existed for private schools to pay their teachers. There are also dual nature of year-end bonuses under Teacher Remuneration Act. In the US, a rule depending on the bonus is discretionary or non-discretionary determining the nature of the bonus to be gratuity or payable wage. For identifying the nature of bonus under Teacher Remuneration Act we should adopt the rule. For those year-end bonuses paying under contract, agreement, public notice, promise, custom, practice, or evaluative criteria are non-discretionary bonuses and with a nature of payable wage. Private schools are required to pay the bonuses.

並列關鍵字

Year-end bonus ； Labor Standards Act ； Discretionary ； Base Pay