雇主濫權解僱防治法制之研究

觀諸現行散見於各法中，雖定有解僱禁止相關保護法制，惟有諸多重疊之處與疊床架屋之嫌，致使勞工普遍礙於自己法律知識薄弱，不利為其應得之權利發聲，與對不良雇主之濫權行為與之抗衡。再言之，雇主違反解僱法定規範之非法解僱，亦或是構成於法上未規範之濫權解僱，無論前者與後者將致使勞工面臨生計難關，而查現行我國相關解僱行政管理法制，僅依靠《勞動基準法》與諸多散件於各法中零星的解僱相關保護規範、行政權不彰的行政組織與將勞動法視為私法之「公私法二分論」觀念，似乎已無法嚇阻雇主濫權行為與應映變化萬千的勞資關係，遂而有效地保障勞工最核心之工作權存續。是以，本文採用行政法學中「行政法五大架構」為主要研究方法，並僅針對其中「基本原理」之社會面、經濟面、政治面與法制面4面項，所構成之「建制背景」，分別以社會學之馬克斯思想理論、經濟學之賽局理論、政治學之立法協商與折衝過程、法制面法制學之社會法律學研究，續以質性研究之文獻分析法、歷史研究法與歸納推理法，進而對上述4面項進行水平與縱向視角分析，並以「社會法」之角度審視我國雇主濫權解僱一事，與現今勞工所面臨之困境，進而提出「社會法」之「預防」概念，與典章制度各項調整之建議與方向，以盼作為將來後續「行政法五大架構」研究之基石，使雇主濫權解僱勞工之憾事，得以有效消弭。

關鍵字

濫權解僱；終止勞動關係；非法解僱；馬克思主義；賽局理論；行政法五大架構

並列摘要

From ancient times to the present day, no matter when and where, if high status people hold great power and lord it over others, then it’s highly possible that the abuse of right and abusive dismissal may occur, further putting low status people in an unfavorable situation. Especially in Taiwan’s job market, employers tend to bully labors by abusing right for their own benefit and convenience because they have advantages such as capital, technology, and lands. As a result, labors’ employment stabilization and labor conditions are affected, and the labor relations between both parties are even terminated by employers at will. Employers’ wrongful dismissal and the abuse of right existing in the current job market mentioned above seem to not shrink for current dismissal protection legislation. However, the current dismissal protection legislation is found in different laws and therefore overlaps happen. As a result, the lack of knowledge in law makes it difficult for labors to speak up for the right they deserve and fight against bad employers’ abuse of power. To sum up the above, with only Labor Standards Act, incomplete relevant regulations found in many laws, and administrative organizations with weak executive power, the current relevant dismissal administrative management legal system in Taiwan seem to fail to keep pace with the times and secure labor’s core right to work. In this respect, this research considers it necessary to build a Taiwan’s administrative management legal system regarding preventing abusive dismissal. Therefore, this thesis adopts five elements in the administrative law as the main research method, focusing its basic principles including four aspects: society, economy, politics, and legal institution. The four aspects compose the background of the institution, relatively studied by using Marxist thought in sociology, game theory in economics, negotiation in politics, and legal institution in legal institution research. Also, methods of literature analysis, historical research, and induction in qualitative research are conducted to analyze the four aspects horizontally and vertically. This thesis attempts to examine abusive dismissal in Taiwan from different perspectives, focusing on situations and the current difficulties encountered by labors, then proposing preliminary suggestion on adjustment and directions. It is hoped that this thesis may be the foundation of follow-up studies, Five Major Frameworks Of Administrative Law. preventing abusive dismissal from happening in the future.