職業災害雇主責任抵充關係認定基準之建構

經法律明文之抵充關係，雇主得主張以「勞工受填補之給付」抵充雇主應負擔之「補償金額」或「賠償金額」，以解決雙重填補之爭議，達成填補「不」超出損害之公平目的。鑒於抵充規範在衡平勞資雙方權益上之重要性，又感我國實務對抵充規範客體之適用略有模糊，本文乃側重於抵充規範之探討及客體要件之解釋。目前司法實務未受縛於法條規範，而對抵充有廣泛且靈活地應用，惟其界限該如何描定，迄今尚未有明確基準可循，因此，本文首先檢視司法實務上關於抵充關係之案例，並評述各情形之抵充關係成立可能性，初步建立抵充關係客體之輪廓。其次，針對現行雇主責任抵充規範（勞動基準法第59條但書、勞動基準法第60條及職業災害勞工保護法第6條第4項）中，「同一事故」抵充要件之內容加以闡述與釐清。該要件看似清晰，但若單純將「同一事故」解為「同一職災事故」，於適用上則會發生問題，因此何謂「同一事故」仍有討論空間。經探討後，本文以為除現行抵充規範明定之抵充關係外，未經明定之抵充關係亦有之。抵充關係認定基準，除以請求權競合為前提外，首先須有一請求權已經實現。再者，須符合「同一事故」要件，「同一事故」則係指「同一事故之同一損害」，蓋抵充規範立法目的在於避免重複填補損害，因此不僅損害性質須相同，受損害的主體也須一致，若損害主體相異而允許雇主主張抵充，則等同以一利填補二損，如此並不合理。最後，期望本文之闡述對於抵充規範之解讀與發展有所貢獻。

關鍵字

抵充規範；抵充關係；抵充客體；抵充要件；同一事故

並列摘要

According to the deduction regulations of law, based on labors' compensation which has been paid, an employer may claim to deduct the compensation that the employer should bear. With this operation, the dispute of repeated remedy could be solved, which has the effect of avoiding compensation exceeding damage and achieving the goal of equity. Therefore, compensation regulations are very important in balancing the rights and interests of both employers and employees. In view of the importance of deduction regulations, and the ambiguity on practical application, this research focused on the inspection of deduction regulations and the interpretation of object elements. In present judicial practice, deduction relationship was widely applied not only according to deduction regulations but also quoting analogy. However, how the application boundary is still unclear. Therefore, this article first examined the cases of deduction relationship in judicial practice and reviewed the possibility of deduction relationship in each situation to initially establish the outline of objects of deduction. However, the property of commercial insurance is different from the labor insurance. On the other hand, the types and content of commercial insurance contracts must be judged on-the basis of individual facts, thus, which will be discussed in another article in the future. Moreover, the content of ＂the same accident＂ deduction element was elaborated and clarified. The elements seem precise; nevertheless, if the ＂same accident＂ is simply interpreted as the ＂same occupational accident＂, there will be problems in application. Therefore, there is still room for discussion on what is meant by the same accident. After rigorous investigating, this article insisted that in addition to deduction relationships in deduction regulations, there are also non-specified deduction relationships. Next, besides precondition for the competition of rights, the recognition criteria of deduction relationship must first have a right to be implemented. Furthermore, to confirm ＂the same accident＂ which means ＂the same damage in the same accident＂ is needed. Since the legislative purpose of deduction regulations is to avoid repeated filling of a same damages, thus, not only property but the subject has to be identical. On the contrary, allowing employer to deduct with different subjects of damage, that is equivalent to filling the two losses with one interest, is unreasonable. Lastly, it is expected that this research will contribute to the interpretation and development of deduction regulations.