- 期刊
實習生勞工法律問題之研究
A Study on the legal Problems of Student Trainee from the Viewpoint of Labor Law
摘要
促進各種職業的教育訓練，係我國福利國家責任的表現。國家應在公平對待原則、契約自由原則、以及企業自行負擔原則的前提下，推動職業訓練的進行，讓每一個人都有接受職業訓練的機會、當事人雙方在自由意願下訂立職業訓練契約、以及原則上由進行職業訓練的事業單位負擔訓練費用（所謂「職業訓練免費原則」）。實習生，是指短暫地在廠場中工作，以學得準備一個工作（含學術工作）所須要的知識與經驗之人。實習生契約關係的種類不一，一般而言，其與技術生訓練關係或養成訓練關係並不完全相同。在實習生關係中並不進行一個有體系的職業訓練。在面對教育法規與勞工法規競合時，應將實習工作區分為是否為學習課程的一部分，而認定其有無職業訓練法的適用。為避免雇主濫收建教生之流弊，除了建教生訓練契約有最低限度的約定外，並應限制建教生在廠場中所占的最高人數。在實習生的法律地位上，原則上，各種形式的實習生均非勞工的身份，蓋此種實習關係，有者具有教養義務的本質、有者並不具有教養義務，但無論如何，訓練的目的及學習的目的都高過於經濟利益的目的。例外地，在“假象的實習”或不真正的實習關係時，實習生始為勞工。訓練津貼的法律性質並非工資。原則上，事業單位不得與實習生約定返還費用條款及受訓後禁止競業條款（但補習機構之實習可以約定禁止競業條款）。事業單位對於實習生，有一定期限的留用權限，實習生並無自動留用之權，但也無永久留用義務。事業單位必須概要式地確定以何種具體的工作條件繼續留用勞工。實習生訓練契約當事人得自由約定契約的終止原因，惟其應受到私法中－尤其是民法中的－強制禁止規定的檢驗。最後，有關（適用於勞動關係的）無薪假之規定，並不適用於實習生。
並列摘要
In Taiwan, the government should promote vocational education and training under the welfare state responsibility theory. As the administration try to promote occupational training, it should obey the principle of fair treatment, the principle of freedom of contract, and the principle of corporate self-pay, so that everyone has the chance to obtain occupational training, the parties can conclude a contract under their own decision, and the vocational establishments should assume principally all training costs (so-called ”principle of free charge by vocational training”). Student trainee is a person who stay and work only short time in the factory so that he/she can learn the practical knowledge and experience which are required for the next job (including academic job). There are several different kinds of student trainee contractual relations, in general, there are some difference between student trainee and apprentice and developing trainee. A systematic vocational training will not be carried out under student trainee relations. When a person obtains vocational training, he/she might be protected under educational laws or labor laws, in this situation only when vocational training is not a part of educational curriculum, then the Vocational Training Law is applicable. When we try to ban the disorderly employ educational trainee from the site of employer, we should demand that contractual parties harmonize a minimum content in the vocational contract of educational trainee, besides, the establishment can only employ a certain number of educational trainee which is regulated by law. In the legal localization of status of student trainee, in principle, all forms of student trainee is not laborer, whether the student trainee inhere the nature of an educational contract or not, the educational goal and learning goal are more important than the commercial purpose. But, in case of ”fictitious student trainee relationship” or false student trainee relationship, the student trainee must be deemed as laborer exceptionally. The living allowance (remuneration) cannot deem as wage. In principle, establishments may not negotiate and make agreements with student trainee over repayment of the training costs or articles for restraint on competitive practice after training (but the private practical tutorial institutions may agree with student trainee over a non-competition agreement). Establishments have a certain competence to ask student trainee to stay (clause of stay) after training, student trainee has not a automatically right of stay in establishment, she/he but not an obligation to stay in establishment permanently. In case that student trainee decides to stay in establishment, establishment must specify approximately the work conditions. The parties of vocational training of student trainee may come to an agreement of contractual termination causes under their own mind, but naturally they should be subject to the prohibition of mandatory regulations in private law - in particular, civil law - . Finally, the statues of short-work which are applied for normal labor relations, does not apply to student trainee.