21世紀勞動法制架構的轉變

서지정보

· 발행기관 : 한국노동법학회
· 수록지 정보 : 노동법학 / 28호 / 53 ~ 120페이지
· 저자명 : 黃程貫

초록

Research on the Transition of the Labor Law Paradigm of the Upcoming 21th Century in Taiwan

Dr. Cheng-Guan Hwang*

According to the factors such like the following developing tendencies which caused by the economic globalization: deregulation of labor protection, flexibilization of individual employment relation, deformalization of worker status and not the least the so-called decentralization and individualization of collective employment relation, as well as the integrative development between Taiwan and Mainland with his effort back to the international community, the social basis of labor law in Taiwan is among the process of collapse.
Generally spoken is a Deconstruction as well as a Construction for labor law in Taiwan with the following aspects to be searching for in the future: 1. over the individual labor law – (1) Facing the coming demand for flexibility is security at first to be considered. It means that flexibility can’t be thought without security as its basis. The so-called security at one hand implies the guarantee of the right for working which including the procedural justice of dismissing, as well as the protection in case of unemployment or retirement. The flexibility at the other then signifies the relaxation of the imperative regulation, such as loose for working conditions and dismissing reasons under emphasis on the possibility of the employer’s authority for changing working conditions and personnel structures. (2) It is also indicated that the traditional form of employment breaks up already. The portrait and figure of workers change themselves. The long-term permanent employment is no longer a universal type. The fixed-term employment, the dispatching, not the least the part-time working have got their great movement through quantitative to qualitative dimensions. It is necessary to make a legal response to these trends. (3) The certainty, consistency, foreseeability and confidence for regulation of labor contracts: the individual labor law is often to be accused of its vague configuration and difficulty for application. Consequently it is essential to consider with passing of a new labor-contract-regulation, in order to be a basic norm system for contractual behaviors of parties and juridical judgments by the court. (4) The mobility of capitals and the changing of management organizations bring also great influences on the employment relation as the past. 2. Over the collective labor law: the variation and differentiation of employment relation result in an erosion of the collective power. The collapse of unions, the individualization of workers as well as the so-called “Verbetrieblichung” (Factorizing-Process) are the point issues to be mentioned. The role of national states shall be breaking the present legal limitation, and offer a possibility for autonomy and self-determination between capital and labor. 3. Over the settlement of labor disputes: it is important to be thought about rebuilding the administrative, juridical and autonomic mechanism for settlement of labor disputes. The key point comes to an emphasis more on the possibility of self-settlement under a professional legal framework, no matter with its whole new construction or strengthening of the old one. We shall expect more discussion and argumentation in the academic forums of experts for labor law. Coming of a new labor law paradigm is perhaps the next step to wait.

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