| Abstract: | 在國際化、自由化以及全球化之趨勢下，企業為增進生產效率以及提高競爭能力，除致力技術升級，亦經常以裁撤或整併相關部門調整組織結構降低勞動成本作為因應措施，然而產業結構一旦調整，尤其是事業單位改組、轉讓或讓與營業及財產時，勞雇關係通常即受影響：原來受雇之勞工如受留用，係指原勞動契約之延續還是僅個人受僱機會受到保障，影響所及，勞工之年資、薪資、退休金、職工福利金等應維持或改變；另一方面，不受留用或拒絕留用者應如何維護相關權益，均為勞動法學關心之問題，學說也有相當多之論述。依我國現行勞基法之規定事業單位之轉讓為雇主得終止勞動契約之法定事由；企業併購法亦規定公司併購時勞工由新舊雇主商定留用，這些法規確立了新舊雇主商定留用原則，從企業併購觀點或許視之為簡易且符合效率之規範，但與外國立法例相較，例如德國民法第613a 條規定廠場轉讓勞動關係必須隨同移轉，在企業併購與勞動關係存續保障之間，是否是一個妥適之價值抉擇，恐有疑義。企業轉讓，勞工處於被動接受新舊雇主決定去留之結果，這種「資產概括承受、勞工商定留用」之政策，呈現的或許是經營效率財產之極大化，但卻已喪失傳統法律追求公平正義之規範價值，尤其是企業之利潤並非完全由企業之營業及財產設備創造而來，勞動力更應是運用企業設備或組織環境共創企業利潤之重要要素，如認為僱用機會係由經營組織衍生，僱傭關係之存續或終止僅由雇主控制或決定，將完全忽視勞動力對於生產組織發揮功能之一體性，且忽視商定留用影響勞動契約之存續，涉及勞工生存權之問題。故本文以為企業併購時，消滅公司之權利義務既由吸收或新設合併公司概括承受，消滅公司之勞工亦應由其承受，將現行勞基法及企併法商定留用原則，改為勞動契約法定承擔原則。至於分割及收購營業或財產之併購型態，因實務對於「獨立營運」、一部或全部「營業及財產」之概念認定標準仍然分歧，是否同採承受勞工，則持保留態度。
The trend of internationalization, liberalization and globalization, businesses increase productivity and improve competitiveness, in addition to efforts to upgrade its technology, often eliminating or whole and the relevant departments to adjust the organizational structure to reduce labor costs as a workaround, however, the industrial structure Once adjusted, especially the restructuring of the institutions, assign or transfer with the business and property, the relationship of employer and employee usually that is, affected: the original employment of workers affected by retained, means a continuation of the original labor contract or only individual of employment opportunities are protected Consequently, the labor of years, salaries, pensions, employee benefits, etc. should be maintained or change; the other hand, are not retained or reject those retained should be how to maintain the relevant rights and interests, are concerned about Labor Law, the doctrine also quite a lot of the discourse. Statu tory subject matter of the transfer of institutions in accordance with the provisions of the current Labor Standards Act for the employer terminates a labor contract; Merger and Acquisition Act also provides for mergers and acquisitions, labor by the old and the new employer agreed retained, these regulations establish the old and the new employer agreed that the retained principle for mergers and acquisitions or the case of simple and in accordance with the norms of efficiency, but compared to cases with foreign legislation, such as plant transfer of labor relations of the provisions of section 613a of the German Civil Code must be accompanied by the transfer, mergers and acquisitions and workers subsisting between security, whether it is a properly the value of choice, fear of doubt. Transfer, labor in the passive acceptance of the results of old and new employers decided the fate of this “asset broadly accept, workers agreed to remain in employment” policy, perhaps showing the maximization of operating efficiency of property, but has lost the traditional legal pursuit of fairness and justice the normative value, especially in the profits of the enterprise is not entirely come from the business and property and equipment to create more labor should be the use of business equipment or organizational environment to create an important element of corporate profits, such as employment opportunities derived by the business organization, subsisting or termination of employment opportunities, only the employer`s control or decision will be completely ignored labor for the production organization to play a functional unity, and ignore the agreed retained affect the labor contract subsisting, the problems relating to labor the right to life. We argue that to destroy the rights and obligations of the company mergers and acquisitions, both by the absorption or the new combined company generally take the elimination of the labor of the Company should also be by to bear the existing Labor Standards Law and enterprises, and France agreed to the retained principle instead of the labor contract legal commitment to principle. As for the type of segmentation and the acquisition of the business or property acquisition standards are stilldifferences, due to the concept of Practice for the “independent operation”, one or all of the “business and property” is to bear with the mining labor, there are still room for discussion. |
