通勤災害之認定基準－兼評臺北高等行政法院一○三年度訴字第一○五五號判決

Abstract

通勤災害是否屬於職業災害，對於勞資雙方的權益有重大的影響。我國於勞工保險條例授權制定之被保險人因執行職務致傷病審查準則中，明文規定將通勤災害視為職業傷害，而予以勞工保險職業災害保險給付，然其是否屬於勞基法上之職業災害卻非無爭議。再者，現行法上對於通勤災害之定義與認定基準，實付之闕如。則通勤災害之認定基準是否和一般的職業傷害相同，應具備「業務遂行性」與「業務起因性」，即有疑義。蓋通勤災害之本質，與職業災害並不相同，後者乃係處於雇主控制下，業務所內含之危險現實化的結果。則如何去認定是否屬於勞工保險應予給付之視為職業傷害的通勤災害，實有加以探究之必要。本文擬藉著評釋臺北高等行政法院一○三年度訴字第一○五五號判決，釐清我國通勤災害之認定基準，並透過日本法之介紹，探究通勤災害應有之認定基準。

For both the employees and employers, whether or not commuting injuries are compensable is an important issue. According to the Regulations of the Examination of Injuries and Diseases Resulting from the Performance of Duties by the Insured Persons of the Labor Insurance Program-a core drawn up in accordance with the Labor Insurance Act, commuting injuries are considered as occupational injuries. Commuting injuries, therefore, are covered by labor insurance. Whether commuting injuries are occupational injuries according to the Labor Standards Act, however, is still a controversial issue. In addition, the definition of commuting injuries and the requirements of commuting injuries approval are not stipulated in explicit terms by current laws. Similarly, whether the requirements of commuting injuries approval are the same as those of occupational injuries approval- which are arising out of and in the course of employment-is also doubtful. Since the nature of commuting injuries is different from that of occupational injuries which are caused by the hazard inherent in the work under an employer`s control, it is necessary to reason what the requirements of commuting injuries approval are-in order to decide what shall be considered as occupational injuries and covered by labor insurance. This research not only comments on the (103) Su No.1055 Decision Rendered by the Taipei High Administrative Court to clarify the requirements for commuting injuries approval in Taiwan, but also undertakes a comparative study on Japan to discuss the issues above.