發文單位：司法院
解釋字號：釋字第568號
解釋日期：民國92年11月14日
解釋爭點：勞保條例細則以投保人欠費將被保人退保規定違憲？
資料來源：司法院公報 第 46 卷 1 期 1-11 頁
                    司法院大法官解釋（十六）（99年5月版）第 257-274 頁
                    法令月刊 第 54 卷 12 期 91-95 頁
                    考選周刊 第 941 期 2 版
                    總統府公報 第 6555 號 25-50 頁
                    法務部公報 第 319 期 38-49 頁

相關法條：中華民國憲法 第 153、155、23 條 ( 36.01.01 )
                    中華民國憲法增修條文 第 10 條 ( 89.04.25 )
                    農民健康保險條例 第 14 條 ( 91.06.26 )
                    全民健康保險法 第 30 條 ( 92.06.18 )
                    勞工保險條例 第 11、17、19 條 ( 92.01.29 )
                    勞工保險條例施行細則 第 18 條 ( 92.05.14 )

解釋文：
    勞工依法參加勞工保險及因此所生之公法上權利，應受憲法保 障。關於保險效力之開始、停止、終止及保險給付之履行等事由，係屬勞工因保險關係所生之權利義務事項，攸關勞工權益至鉅，其權利之限制，應以法律定之，且 其立法目的與手段，亦須符合憲法第二十三條之規定。若法律授權行政機關發布命令為補充規定者，該命令須符合立法意旨且未逾越母法授權之範圍，始為憲法所 許。勞工保險條例施行細則第十八條關於投保單位有歇業、解散、破產宣告情事或積欠保險費及滯納金經依法強制執行無效果者，保險人得以書面通知退保；投保單 位積欠保險費及滯納金，經通知限期清償，逾期仍未清償，有事實足認顯無清償可能者，保險人得逕予退保之規定，增加勞工保險條例所未規定保險效力終止之事 由，逾越該條例授權訂定施行細則之範圍，與憲法第二十三條規定之意旨未符，應不予適用。

理由書：
按本件聲請人因勞保事件，認最高行政法院九十一年度判字第一五六號判決所適用之勞工保險條例施行細則第十八條規定有牴觸憲法之疑義而聲請解釋，雖未載明係以司法院大法官審理案件法第五條第一項第二款就人民於其憲法上所保障之權利，遭受不法侵害，經依法定程序提起訴訟，對於確定終局裁判所適用之法律或命令發生 有牴觸憲法疑義者，得聲請解釋憲法之規定為據，而誤引同條項第一款作為聲請之依據，惟其聲請書既已具體指摘前開確定終局判決所適用之勞工保險條例施行細則 第十八條規定牴觸母法，增加法律所無之限制，應宣告無效等語，應認符合前開審理案件法第五條第一項第二款規定之要件，爰予受理，合先敘明。
勞工保險係國家為實現憲法第一百五十三條保護勞工生活及憲法第一百五十五條、憲法增修條文第十條第八項實施社會保險制度之基本國策而建立之社會安全措施，為 社會保險之一種。勞工保險條例即係依上開憲法意旨而制定之法律。勞工依該條例參加勞工保險及因此所生之公法上權利，應受憲法保障。關於保險效力之開始、停 止、終止及保險給付之履行等事由，係屬勞工因保險關係所生之權利義務事項，攸關勞工權益至鉅，其權利之限制，應以法律定之，且其立法目的與手段，亦須符合 憲法第二十三條之規定。若法律授權行政機關發布命令為補充規定者，該命令須符合立法意旨且未逾越母法授權之範圍，始為憲法所許。
勞工參加勞工保險為被保險人，於保險有效期間內發生保險事故者，被保險人或其受益人得依法向保險人請領保險給付（勞工保險條例第十九條第一項規定參照）。勞 工保險條例對於投保單位逾期繳納保險費者，規定保險人於法定寬限期間經過後，應加徵滯納金，若於加徵滯納金十五日後仍未繳納者，應依法訴追，並自訴追之日 起，在保險費及滯納金未繳清前，發生暫行拒絕給付之效力(同條例第十七條第一、二、三項規定參照)，並未規定保險人得以上開事由逕行將被保險人退保；同條 例施行細則第十八條卻規定：「投保單位有歇業、解散、破產宣告情事或積欠保險費及滯納金經依法強制執行無效果者，保險人得以書面通知退保。保險效力之停 止，應繳保險費及應加徵滯納金之計算，以上述事實確定日為準，未能確定者，以保險人查定之日為準（第一項）。投保單位積欠保險費及滯納金，經通知限期清償，逾期仍未清償，有事實足認顯無清償可能者，保險人得逕予退保，其保險效力之停止，應繳保險費及應加徵滯納金之計算，以通知限期清償屆滿之日為準（第二項）。」顯已增加勞工保險條例所未規定之保險效力終止事由，逾越該條例授權訂定施行細則之範圍，與憲法第二十三條規定之意旨未符，應不予適用。又為確保保險財務之健全，與勞工保險之永續經營，國家就社會保險制度縱有較大之自由形成空間，於投保單位積欠應繳之保險費及滯納金，強制執行無效果或顯無清償可能時，若許保險人得將被保險人予以退保者，亦宜依比例原則就被保險人是否已繳納保險費或有無其他特別情事，予以斟酌而有不同之處置；上開條例第十七條第三項但書亦明定，被保險人應繳部分之保險費已扣繳或繳納於投保單位者，不因投保單位積欠保險費及滯納金而對其發生暫行拒絕給付之效力，併此指明。


J. Y. Interpretation No.   568
Date：2003.11.14
Issue：Does Article 18 of the Enforcement Rules of the Labor Insurance Act, whereby the insurer is entitled to cancel the insurance in case the insured entity fails to pay the premium and default penalty or is incapable of payment, go beyond the power granted by the Labor Insurance Act and is it thus unconstitutional?

Holding：
The right of a worker to enroll in the labor insurance program and all of his public law rights arising therefrom are guaranteed by the Constitution. All matters in connection with the commencement, suspension, and termination of the effect of the insurance and the performance of the insurance payment are matters relating to the rights and obligations of workers arising out of the insurance relations and are of great concern to the interest of workers. Thus, any restriction on the workers’ right must be prescribed by law, and the legislative purpose and approach must be consistent with Article 23 of the Constitution. If the administrative authorities are empowered by law to issue rules and ordinances as supplements thereto, such rules and ordinances must be consistent with the legislative intention and must not go beyond the scope of power granted by the enabling statute to be permissible under the Constitution. The provision of Article 18 of the Enforcement Rules of the Labor Insurance Act stating that the insurer may by a written notice cancel the insurance in the case where the insured entity closes down its business or is dissolved or goes bankrupt or fails to pay the insurance premium and, default penalty due and payable notwithstanding, the compulsory execution proceeding taken against such entity and that the insurer may immediately cancel the insurance in case the insured entity fails to pay the insurance premium and default penalty overdue after lapse of the time limit given by the insurer in a notice and there are sufficient facts to show that there is no possibility for the insured entity to make payment, adds extra reasons for the termination of the insurance that do not exist in the Labor Insurance Act, has gone beyond the power granted by the Act with respect to the scope of the enforcement rules, and is thus contrary to the intention embodied in Article 23 of the Constitution. Said provision must cease to be operative.

Reasoning：
In this case regarding labor insurance, where the Petitioner demands interpretation with respect to the question of whether Article 18 of the Enforcement Rules of the Labor Insurance Act applied by the Supreme Administrative Court in its judgment Pan-Tze No. 156 delivered in 2002 is in conflict with the Constitution, we must point out at the outset that, while the Petitioner fails to state that this petition is based on the Constitutional Interpretation Procedure Act, Article 5, Paragraph 1, Subparagraph 2, which allows a person to petition for constitutional interpretation in case his constitutional right was illegally infringed upon and he has brought a lawsuit for such infringement in pursuance of legal procedures, but has raised doubts as to the constitutionality of the statute or regulation relied upon by the court in its final and irrevocable judgment, and the Petitioner has by mistake invoked Subparagraph 1 of said Article as the ground for his petition, the Petitioner has asserted specifically, inter alia, that Article 18 of the Enforcement Rules of the Labor Insurance Act applied by the aforesaid irrevocable and final judgment is against the enabling statute by adding extra restrictions not prescribed by law and must be declared null and void. We think the Petitioner’s statements meet the elements required by the Constitutional Interpretation Procedure Act, Article 5, Paragraph 1, Subparagraph 2, and we have hence decided to take up this case.

　 　Labor insurance is a type of social insurance as a part of the social security program established for the realization of the fundamental national policies laid down by Article 153 of the Constitution with respect to the protection of the livelihood of workers and Article 155 of the Constitution and Article 10, Paragraph 8, of the Amendments to the Constitution with respect to the establishment of a social insurance program. The Labor Insurance Act is a legislation enacted in pursuance of the purposes of the Constitution outlined above. The right of a worker to enroll in the labor insurance program and all of his public law rights arising therefrom are guaranteed by the Constitution. All matters in connection with the commencement, suspension, and termination of the effect of the insurance and the performance of insurance payment are matters relating to the rights and obligations of workers arising out of the insurance relations and are of great concern to the interest of workers. Thus, any restriction on the workers’ right must be prescribed by law, and the legislative purpose and approach must be consistent with Article 23 of the Constitution. If the administrative authorities are empowered by law to issue rules and ordinances as supplements thereto, such rules and ordinances must be consistent with the legislative intention and must not go beyond the scope of power granted by the enabling statute to be permissible under the Constitution.

　　Where an insured event occurs to a worker who has enrolled in the labor insurance program as an insured during the term of the insurance, the insured or his beneficiary may legally claim insurance payment from the insurer. (See the Labor Insurance Act, Article 19, Paragraph 1). In the event of failure of an insured entity to pay the insurance premium when due and payable, the Labor Insurance Act provides that the insurer shall charge a default penalty upon lapse of the statutory grace period and shall take legal action if the insured entity continues to fail to make payment upon the lapse of the period of fifteen (15) days after the default penalty is charged, and that from the date such legal action is taken the insurer is entitled to temporarily suspend payment of insurance benefit until the insurance premium and the default penalty due are fully paid. (See the Act, Article 17, Paragraphs 1, 2 and 3). The Act has no provision to allow the insurer to cancel the insurance for the insured in the above circumstances. However, the Enforcement Rules of the Act provide in Article 18: “The insurer may by a written notice cancel the insurance in case the insured entity closes down its business or is dissolved or goes bankrupt or fails to pay the insurance premium and default penalty due and payable notwithstanding the compulsory execution proceeding taken against such entity. The term of the insurance shall be suspended and the insurance premium payable and the default payment chargeable shall be computed as of the date the facts specified above are ascertained as the base date therefor. If such date cannot be ascertained, the date determined by the insurer upon investigation shall be the base date (Paragraph 1). The insurer may immediately cancel the insurance in the case where the insured entity fails to pay the insurance premium and default penalty overdue after lapse of the time limit given by the insurer in a notice and where there are sufficient facts to show that there is no possibility for the insured entity to make payment, and in such circumstance, the term of the insurance shall be suspended and the insurance premium payable and the default payment chargeable shall be computed as of the date of expiration of the time limit given in a notice demanding payment (Paragraph 2).” The article quoted has obviously added reasons for the termination of the insurance that do not exist in the Labor Insurance Act and has gone beyond the power granted by the Act with respect to the scope of the Enforcement Rules, and is thus contrary to the intention embodied in Article 23 of the Constitution. Said provision must cease to be operative. Furthermore, orbiter dictum, granted that the state should be given more room for discretion in order to insure sound financing for the insurance and the perpetual operation of the labor insurance program, to the extent that the insurer is allowed to cancel the insurance in case the insured entity fails to pay the premium and default penalty owed and payable and compulsory execution has brought no result or it is obvious that full payment has become impossible, it is desirable that different measures be adopted by taking into consideration, on the principle of proportionality, whether the insured has paid the premium or whether there exists any special circumstance. A fortiori, it is also provided by the proviso to Paragraph 3 of Article 17 of the Act that an insured person shall not be temporarily refused payment of insurance benefits because the insured entity fails to pay the premium and default penalty owed and payable by it if the portion of the premium payable by the insured person has already been deducted by or paid to such insured entity.

'Translated by Raymond T. Chu.