國營事業「公務員兼具勞工身分者」老年經濟保障之探討

人口老化伴隨著嬰兒潮世代的退休及資源的不足，社會安全相關問題漸漸浮上檯面，面對越來越高的老年人口比率，老年經濟保障制度更形重要。目前台灣施行的老年經濟安全制度，基本上分為兩個層面，第一層為法定公共年金；第二層是法定職業退休金，透過職業退休金，以維持職業人口離開職場後之老年經濟保障，惟部分任職於國營事業之「公務員兼具勞工身分者」，仍未納入年金制度保障。本研究首先從年金相關理論、退休制度設計理論以及老年經濟保障之歷史發展與改革趨勢等三方向，進行老年經濟保障之基礎論述。其次，從基礎保障與職業退休金兩部份探討我國老年經濟安全制度，並將國營事業公務員兼具勞工身分者之退休金給付獨立探討，以完整解析台灣現行老年經濟保障制度。再者，就國營事業之設立目的與組織型態以及公務員之定義與分類進行探討，以了解「公務員兼具勞工身分者」之特殊身分如何產生，並釐清國營事業與「公務員兼具勞工身分者」間之職務關係究屬公法或私法性質。最後，在透過老年經濟安全之相關理論基礎、世界趨勢、台灣現況以及國營事業與「公務員兼具勞工身分者」間之職務上法律關係之觀察後，從法律視角以法律保留原則與平等原則對國營事業所屬「公務員兼具勞工身分者」之退休相關制度做檢視。具體言之，從法規密度與明確性分析其是否符合法律保留原則之要求，並從平等原則之判斷程序檢視該等身分者之退休相關制度之合憲性。本研究發現，國營事業針對「公務員兼具勞工身分者」所採取之一次性退休給付，不僅欠缺風險分擔效果，且法規紛雜，甚至也欠缺人權觀點考量。另外由於部分國營事業組織定位未明，產生公法或私法職務關係並存之矛盾。故而可得結論，國營事業管理法第33條退休制度之授權，未能符合法律保留原則，且在制度規劃上有違反平等原則之疑慮。經由上述之研究，本論文提出以下建議﹕ 首先，應重新釐清國營事業機構之組織定位，主管機關應視國營事業所涉及之公益性、不可取代性之強度，事業內容與人民基本權利關係之深淺，以及是否保留憲法所規範之國家義務的必要性，並參考公法或私法形態所具備的優缺點，決定其組織型態。依重新定位之組織屬性，屬公法組織者，其與所屬公職任用人員間，則亦相應定位為公法職務關係，人員之身分為公務員；而公法組織與公職契約人員間為私法職務關係者，則人員之身份為勞工。而屬私法組織者，除主管機關指派之人員外（受指派人與主管機關間具有公法職務關係），其餘人員均應為勞工身分。透過國營事業組織型態之釐清，其與人員間之公法或私法職務關係即可確認，「公務員」或「勞工」之身分亦可明確界定，「公務員兼具勞工」之特殊身分即可排除。以此分類，其所應採行之退休制度則依據其身分別適用之，而無需再由主管機關另定，並可符合法律保留與平等原則之規範。

關鍵字

經濟安全；年金法律；保留原則；平等原則

並列摘要

Population aging along with the retirement of baby boomers and insufficient resources gradually leads to social security-related problems. In the face of increasingly higher ratio of old population, the economic security system for the elderly seems more important. Right now, the economic security system for the elderly in Taiwan consists of two layers, one being legal public pension and the other being legal occupation retirement pension. Through two layers, the economic security of retirees will be ensured. However, part of “civil servants with labor identity” in state-owned enterprises (SOEs) has not been covered in the pension system. The study first expounds the economic security system for the elderly from three aspects, which are the related theories on pensions, the design theory of retirement system, the historic development and reform trend of economic security system for the elderly. Secondly, the economic security system for the elderly will be discussed in terms of basic security system and occupation retirement pension. A separate section will be given to the pension of “civil servants with labor identity” of the state-owned enterprises, through which the thorough analysis on economic security system for the elderly is conducted. Moreover, further discussions on the purposes of establishing SOEs and its organization forms, the definition and classification of civil servants are carried out, in order to figure out how the special identity of “civil servant with labor identity” comes about and the nature, according to the public or private law, of the job relationship with SOEs. Finally, after observing the related theoretical basis for economic security system for the elderly, the global trend, the current situation of Taiwan, and the legal relationship between SOEs and the job of “civil servants with labor identity”, the review on retirement system for “civil servant with labor identity” in SOEs is made from legal perspective, on the basis of the Principle of Legal Reservation and the Principle of Equality. Specifically, the analyses of law density and specificity are used to determine whether it conforms with the Principle of Legal Reservation, while the judgment procedure based on the point of the Principle of Equality is used to decide whether the related retirement system for those employees is constitutional. The study finds that the one-time retirement pension payment by SOEs to “civil servants with labor identity” lacks for not only risk sharing, but also the consideration from the point of view of human rights due to confusing regulations. Besides, due to unclear definition of some SOEs, the job relationship between SOEs and some “civil servants with labor identity” is governed contradictorily by both public and private laws at the same time. In conclusion, Article 33, Authorization of Retirement System, of Administrative Law of State-Owned Enterprise fails to conform to the Principle of Legal Reservation and raises the doubt about violating the Principle of Equality in the aspect of system planning. Through the above study, the thesis puts forward the following suggestions: First of all, the organization definition of SOEs should be clarified again. The organization form will be decided by the competent authority according to the degree of public welfare and irreplaceability of SOEs, the relationship between its business content and the basic rights of the people and the necessity of retaining the national obligation stipulated by the constitution, with consideration of advantages and disadvantages either under public law or private law. According to the redefined nature of the organization, if the job relationship between the SOEs and the employed civil staff conforms to the public law, then the staff are civil servants; if the job relationship between the SOEs and the contract staff conforms to the private law, then the staff are labor. As to the staff employed by the private law, all of them, except those appointed by the competent authority according to the public law, are labor. By making clear the organization form of SOEs, the identity of staff, whether as civil servants or labor, will be clarified according to the job relationship between the SOEs and the staff, governed by the public law or private law. In this way, “civil servants with labor identity” could be excluded. With this method, the retirement system will be used properly according to their identity with no need to be determined by the competent authority separately, while conforming to the Principle of Legal Reservation and the Principle of Equality.