Definition of Workers: A Classic Question or Not? A Discussion Starting from Insurance Solicitors

Abstract

勞務標的契約形式，當事人有選擇自由，然而，在定性的爭論中，「勞工定義」成為關鍵與核心指涉，保險業務員就是例子。勞動法學以人格從屬性為主，司法實務緊追其後，呈現看似明確，實則莫衷一是的操作現實，意外滋生的所謂合併適用、混合契約、哪個契約是基底、哪個契約要素跑出，掩蓋契約單複數的可能真相，使從屬性建構的勞工內涵混亂不堪。另類模式，強調經濟從屬性與社會保護需求，以非獨立性取代從屬性，著眼於控制加承諾模式，增強我們處理相關問題的豐富性。

Both parties have the freedom of choice regarding the form of labor contract. However, the definition of workers is the pivot when we argue about its legal character. The insurance solicitors can serve as examples. Labor law is mainly about personal subordinate relation and it is followed by legal practices. This causes ambiguity and dilemma, such as combinative applications and mix contracts as well as creates confusion over the essence of workers, which is constructed by subordinate relations. On the other hand, the alternative approach, emphasizing on economic subordinate relation and the need of social protection, replaces subordinate relations with non-dependence. This approach focuses on control and commitment and thus enriches the diversity when we are managing relevant issues.