集體爭議行為刑事責任及行政責任之研究

Abstract

在集體勞資爭議中，爭議的一方使用爭議手段以迫使他方屈服，固然為集體爭議行為法所保障。惟爭議行為違法侵害相對人、第三人及社會大眾權益的法律責任——尤其是刑事責任及行政責任，卻往往陷入法規適用上的困擾。蓋我國集體勞工法對於公法上的責任，或者疏未規定或者規定得不夠詳盡，因此，現行的刑事法令及行政法令規定乃成為司法機關及警察機關審判或處理的主要依據。對此，本文以為該等法令應該針對勞資爭議的特質做適度的修正。尤其是，司法機關面對爭議行為之刑事案件，應該從勞工刑法的角度、適度引用非難性及違法性的觀念，給予當事人責任減輕的機會。而警察機關也應遵守一系列規範警察行為的原則，適當地裁量是否及如何介入處理。果如此，才能消瀰勞資爭議於無形。為此，本文建議在立法上盡量釐清爭議行為與刑事法規及行政法規（尤其是集會遊行法、道路交通法規）之關係，以為實務界處理勞資爭議案件遵循之用。

After forty years of unification, the standard of ‘Law for the Settlement of Labor Disputes’ or ‘Collective Bargaining Agreement Law’ has however not yet been developed (including primary community law and secondary community law) in the European Union. As for the future developments, whether or not the basic protection of the right of labor dispute will be formed, as well as whether the European Union will take an interest in integrating labor dispute settlement laws in various member nations, is completely dependent upon the role of strike and factory lock-out will play in each member nation, as well as in the European Union as a whole (in particular) in the future. In this respect, the dialogues engaged in by social partners as stipulated by the European Union Treaty 139th, will provide a space for thinking about a future ‘European Union collective bargaining agreement law (Europaeisierung des the Tarifrechts)’ At the same time, a procedure for unifying dispute actions will inevitably be activated. It is essential for scholars to strengthen and elaborate this procedure. However, undeniably, before a legal system for the settlement of labor disputes appears in the European Union, legal systems for the settlement of labor disputes in the member nations must also enter into the European Union’s field of vision, and expand an active space for explaining, maintaining and promoting the working and economic conditions. In order to prevent the situation of ‘vicious competition of social costs (Sozialkostenwettbewerb)’ from appearing, it is necessary that the national legal systems for the settlement of labor disputes in each member nation be as competitively neutral as possible.