論通勤災害應否視為職業災害

我國有關通勤災害職災補償之特殊法律規範方式，易使法院於某些個案援用日本法例過於傳統的解釋論，否定通勤災害勞工於勞基法第59條之適用，而形成勞雇雙方於通勤災害職災補償上，權利義務處於不確定之狀態。本文自比較勞雇關係與勞動法的觀點，釐清我國與日本勞基法有關通勤災害職災補償規定之不同立法背景與屬性；甚至包括英美日等國在內的世界主要國家職災補償之制度發展納入通勤災害保護的趨勢；論證法院某些判決以上世紀初葉的陳舊過時的勞動法理排除通勤災害於勞基法第59條之適用，並無助於定爭止紛；而對問題的緩和與制度的健全，仍有賴採取某些必要之立法或行政調整作為。

關鍵字

通勤災害；職災補償

並列摘要

The way of special legal norms about the commuting accidents in Taiwan, was easy to invoke over-traditional interpretative theory by the court in dealing with some cases, which denied the application of the article 59 of Taiwanese Labor Standards Law about commuting accidents, whatever formed the workers' compensation of both employers and employees in commuting accidents leading to an uncertain state with the right and obligation of employment relations. First, this article from the point of view with the employment relations and labor law tried to clarify the different legislative background between Taiwanese and Japanese Labor Standards Law on the workers' compensation provisions from commuting accidents. Second, there is a tendency towards commuting accidents protection in the advanced countries, even including USA, UK and Japan gradually. Third, to argue the decision of Court in some cases to exclude commuting accidents in the application of the article 59 of the Labor Standards Law adopted out-of-date labor law theory more than half century ago that is no help to terminate related disputes. Lastly, to mitigate the uncertainty and the integrity of the system still relied on some adjustments of the necessary legislative or administration.