發文單位：司法院
解釋字號：釋字第560號
解釋日期：民國92年7月4日
解釋爭點：就業法就外國受僱人領喪葬津貼之限制規定違憲？
資料來源：司法院公報 第 45 卷 8 期 1-28 頁
                    司法周刊 第 1141 期 1 版
                    司法院大法官解釋（十六）（99年5月版）第 82-120 頁
                    考選周刊 第 923 期 2 版
                    總統府公報 第 6537 號 17-63 頁
                    法令月刊 第 54 卷 8 期 91 頁
                    法務部公報 第 311 期 110-136 頁

相關法條：中華民國憲法 第 15、23、7 條 ( 36.01.01 )
                    勞工保險條例 第 1、15、6、62、66、8、9 條 ( 92.01.29 )
                    就業服務法 第 43 條 ( 81.05.08 )
                    就業服務法 第 46 條 ( 91.01.21 )

解釋文：
     勞工保險乃立法機關本於憲法保護勞工、實施社會保險之基 本國策所建立之社會福利制度，旨在保障勞工生活安定、促進社會安全。勞工保險制度設置之保險基金，除由被保險人繳納之保險費、雇主分擔額所構成外，另有各 級政府按一定比例之補助在內。依勞工保險條例規定，其給付主要係基於被保險人本身發生之事由而提供之醫療、傷殘、退休及死亡等之給付。同條例第六十二條就 被保險人之父母、配偶、子女死亡可請領喪葬津貼之規定，乃為減輕被保險人因至親遭逢變故所增加財務負擔而設，自有別於一般以被保險人本人發生保險事故之給 付，兼具社會扶助之性質，應視發生保險事故者是否屬社會安全制度所欲保障之範圍決定之。中華民國八十一年五月八日制定公布之就業服務法第四十三條第五項， 就外國人眷屬在勞工保險條例實施區域以外發生死亡事故者，限制其不得請領喪葬津貼，係為社會安全之考量所為之特別規定，屬立法裁量範圍，與憲法第七條、第 十五條規定意旨尚無違背。

理由書：
勞工保險係國家為實現憲法保護勞工、實施社會保險等基本國策所建立之社會福利制度，旨在保障勞工生活安定，促進社會安全。該勞工保險制度設置之保險基金，依勞工保險條例規定，除由被保險人繳納之保險費、投保單位之分擔額所構成外，另有各級政府按一定比例之補助在內，保險制度之運作亦由國家以財政支持（勞工保 險條例第十五條及第五章參照）。依同條例規定，其給付主要係基於被保險人本身生之事由而提供之醫療、傷殘、退休及死亡等之給付。勞工保險條例第六十二條規定，被保險人之父母、配偶或子女死亡時，可請領一個半月至三個月之平均月投保薪資，考其意旨，乃就被保險人因至親遭逢變故致增加財務支出所為之喪葬津貼，藉以減輕勞工家庭負擔，維護其生活安定。該項給付既以被保險人以外之人發生保險事故作為給付之項目，自有別於以被保險人發生保險事故者，而係兼具社會扶助之性質，立法機關得視發生保險事故者是否屬社會安全制度所保障，而本於前揭意旨形成此項給付之必要照顧範圍。
八十一年五月八日公布之就業服務法，係為促進國民就業，增進社會及經濟發展而制定。同法第四十三條第五項規定（九十一年一月二十一日修正公布之就業服務法已 改列第四十六條，並刪除此項規定）受聘僱外國人其眷屬在勞工保險條例實施區域外死亡者，不得請領保險給付，係指該眷屬未與受聘僱之外國人在條例實施區域內共同生活，而在區域外死亡者，不得請領眷屬死亡喪葬津貼而言。就業服務法上開限制之規定，乃本於社會安全制度功能之考量，並因該喪葬津貼給付之性質，與通 常勞工保險之給付有別，已如前述。就社會扶助之條件言，眷屬身居國外未與受聘僱外國人在條例實施區域內共同生活者，與我國勞工眷屬及身居條例實施區域內之受聘僱外國人眷屬，其生活上之經濟依賴程度不同，則基於該項給付之特殊性質，並按社會安全制度強調社會適當性，盱衡外國對我國勞工之保障程度，立法機關為撙節保險基金之支出，適當調整給付範圍乃屬必要，不生歧視問題。是就業服務法第四十三條第五項規定符合憲法第二十三條規定之意旨，與憲法第七條平等權、第十五條財產權之保障尚無違背。

J. Y. Interpretation No.   560
Date：2003.7.4
Issue：Is an alien employee entitled to claim burial compensation under Article 62 of the Labor Insurance Act for the death of his dependent who did not live with the employee inside the territory of jurisdiction of the Act and died outside such territory?

Holding：
Labor insurance is a social welfare program established by the Legislature under the nation’s fundamental policy as manifested by the Constitution for protecting workers and implementing the social insurance program, with the purpose of guaranteeing workers a stable livelihood and promoting the social security. The insurance fund established as a part of the labor insurance program is composed of an insurance premium paid by the insured persons and the portion shared by employers in addition to the pro rata subsidies from governments at all levels. Under the Labor Insurance Act, payment is made mainly for medical care, disability, retirement, death, and other events occurring to the insured. The provision of Article 62 of the Act whereby an insured may claim the benefit of burial compensation for the death of his parent, spouse, or child is designed to alleviate the increased financial burden on the insured as a result of the loss of a member of his family, and the payment thereunder is certainly distinguishable from the regular compensation payable against an insured event that occurred to the insured himself in that it carries concurrently the nature of social aid and as such must be determined depending upon whether the person to whom the insured event occurs is covered under the protection provided by the social security program. The Employment Services Act promulgated on May 8, 1992, provides in Article 43, Paragraph 5, that in the case of death of a dependant of an alien employee occurring outside the jurisdictional territory of the Labor Insurance Act, no entitlement to burial compensation may be claimed. This is a special provision enacted for the purpose of social security within the sphere of legislative discretion and is not contrary to the essence embodied in Articles 7 and 15 of the Constitution.

Reasoning：
Labor insurance is a social welfare program established by the state under the nation’s fundamental policy as manifested by the Constitution for protecting workers and implementing the social insurance program, with the purpose of guaranteeing workers a stable livelihood and promoting the social security. Under the Labor Insurance Act, the insurance fund established as a part of the labor insurance program is composed of the insurance premium paid by the insured persons and the portion shared by the insured units in addition to the pro rata subsidies from governments at all levels. The operation of such insurance program is also financed by the state (See Labor Insurance Act, Article 15 and Chapter 5). Under said Act, payment is made mainly for medical treatment, disability, retirement, death, and other events occurring to the insured. The purpose of Article 62 of the Act, whereby an insured is entitled to payment in a sum equal to one and one half to three months of his average wage for which he is insured in the case of the death of his parent, spouse, or child, is to alleviate the burden on the worker’s family finances and to help him maintain financial stability by way of making available to him burial compensation to meet his increased expenses incurred as a result of the loss of a member of his family. To the extent that such payment is made available in the case where an insured event occurred to a person other than the insured, it is certainly distinguishable from the compensation payable against an insured event that occurred to the insured in that it carries concurrently the nature of social aid, and the Legislature is empowered to define the necessary coverage of such payment consistent with the essence expressed above by taking into account whether the person to whom the insured event occurs is covered under the protection to be accorded by the social security program.

　　The Employment Services Act promulgated on May 8, 1992, is enacted for the purpose of promoting the employment of nationals and furthering the social and economic development. The Act provides in Article 43, Paragraph 5 (re-numbered Article 46 in the Employment Services Act amended on January 21, 2002, in which the clause herein cited was deleted) that in the case of the death of a dependant of an alien employee occurring outside the territory where the Labor Insurance Act is implemented, no entitlement to burial compensation shall be available. It means that no burial compensation may be claimed by an alien employee for the death of his dependent if such dependent did not live with the alien employee inside the jurisdictional territory of the Act and died outside such territory. As already stated above, the restriction set forth in the Employment Services Act is based on the consideration of the function of the social security system and the fact that such burial compensation is different in nature from the regular labor insurance coverage. From the viewpoint of eligibility for social aid, a dependent who lives in a foreign country instead of with the alien employee inside the territory of jurisdiction of the Act is distinguishable from the dependent of a local worker and the dependent of an alien employee living with him inside the territory of jurisdiction of the Act in the degree of reliance on living expenses. Thus, because of the particular nature of such benefit and considering the social appropriateness as a significant factor of the social security program and the degree of protection provided by foreign governments to workers from the Republic of China, it is essential that the Legislature makes reasonable adjustment of the coverage of such benefits to save expenditure from the insurance fund and the legislation gives rise to no problem of discrimination. We conclude that the provision of the Employment Services Act, Article 43, Paragraph 5, is consistent with the intent of Article 23 of the Constitution and is not in contradiction to the right of equality set forth in Article 7 of the Constitution and the right of property set forth in Article 15 of the Constitution.

' Translated by Raymond T. Chu.