發文單位：司法院
解釋字號：釋字第595號
解釋日期：民國94年5月6日
解釋爭點：勞保局墊償雇主積欠工資後代位求償爭議之審判權？
資料來源：
司法周刊 第 1235 期 1 版
考選周刊 第 1016 期 2 版
法令月刊 第 56 卷 6 期 103-104 頁
總統府公報 第 6639 號 30-71 頁
司法院公報 第 47 卷 7 期 1-23 頁
行政訴訟法實務見解彙編（96年12月版）第 3 頁

相關法條：
中華民國憲法 第 16 條 ( 36.01.01 )
勞動基準法 第 79 條 ( 91.06.12 )
勞動基準法 第 28 條 ( 91.12.25 )
積欠工資墊償基金提繳及墊償管理辦法 第 14 條 ( 94.01.03 )

解釋文：
勞動基準法第二十八條第一項、第二項規定，雇主應繳納一定數額之積欠工資墊償基金（以下簡稱墊償基金）；於雇主歇業、清算或破產宣告時，積欠勞工之工資，未滿六個月部分，由該基金墊償，以保障勞工權益，維護其生 活之安定。同條第四項規定「雇主積欠之工資，經勞工請求未獲清償者，由積欠工資墊償基金墊償之；雇主應於規定期限內，將墊款償還積欠工資墊償基金」，以及「積欠工資墊償基金提繳及墊償管理辦法」（以下簡稱墊償管理辦法）第十四條第一項前段規定：「勞保局依本法第二十八條規定墊償勞工工資後，得以自己名義，代位行使最優先受清償權 (以下簡稱工資債權) 」，據此以觀，勞工保險局以墊償基金所墊償者，原係雇主對於勞工私法上之工資給付債務；其以墊償基金墊償 後取得之代位求償權（即民法所稱之承受債權，下同），乃基於法律規定之債權移轉，其私法債權之性質，並不因由國家機關行使而改變。勞工保險局與雇主間因歸墊債權所生之私法爭執，自應由普通法院行使審判權。

理由書：
勞動基準法第二十八條第一項規定：「雇主因歇業、清算或宣告破產，本於勞動契約所積欠之工資未滿六個月部分，有最優先受清償之權。」第二項前段規定：「雇主 應按其當月僱用勞工投保薪資總額及規定之費率，繳納一定數額之積欠工資墊償基金，作為墊償前項積欠工資之用」，此乃政府為保障勞工權益，改善勞工處境，促 進社會安定與經濟發展所為之規定，避免企業經營陷入困境，宣告破產，或惡性倒閉，致勞工對於雇主依勞動契約所積欠之工資，無以獲償而蒙受損害。雇主須依此規定向墊償基金提繳一定數額之款項，於雇主歇業、清算或破產宣告時，其所積欠勞工之工資未滿六個月部分，由該基金墊償，以保障勞工之工資於此範圍內確能獲得支付。
        同法第二十八條第四項規定：「雇主積欠之工資，經勞工請求未獲清償者，由積欠工資墊償基金墊償之；雇主應於規定期限內，將墊款償還積欠工資墊償基金」，以及依同條規定訂定之墊償管理辦法第十四條第一項前段規定：「勞保局依本法第二十八條規定墊償勞工工資後，得以自己名義，代位行使最優先受清償權」，就此以觀，勞工保險局以墊償基金所墊償者，原係雇主對於勞工私法上之工資給付債務。雖墊償基金由中央主管機關設置管理，惟墊償基金之資金來源乃由雇主負責繳納， 其墊償行為並非以國庫財產提供人民公法上給付，而是以基金管理者之身分，將企業主共同集資形成之基金提供經營不善企業之勞工確實獲得上開積欠工資之保障， 蓋勞工保險局於墊償勞工後，取得對雇主之代位求償權，其債權範圍、內容與原來之私法上工資債權具相同性質。再勞工保險局為墊償基金行使此項代位求償權時， 乃處於與勞工之同一地位，不因墊償基金由中央主管機關設置管理委員會管理，基金收繳有關業務由勞工保險機構辦理（勞動基準法第二十八條第五項），或墊償基金之設立具有公益上理由，而異其性質。亦即原勞工之工資債權改由勞工保險局行使，乃係基於法律規定之債權移轉，其所具私法債權之性質並不因由國家機關行使 而改變。勞工保險局與雇主間因前述債權所生之私法爭執，自應由普通法院行使審判權。至於雇主違背繳納基金費用之義務，應依中華民國九十一年十二月二十五日修正公布前之勞動基準法第七十九條第一款規定裁處罰鍰，係屬違背公法上義務，則應循行政訴訟途徑為之。又本件係聲請機關就其職權適用勞動基準法第二十八 條、墊償管理辦法第十四條第一項規定，關於其訴訟事件應屬何機關審判之見解與他機關有異，而聲請本院為統一解釋，憲法第十六條規定之訴訟權內涵及各該民事、行政訴訟法法條本身，概非聲請解釋之標的，本件解釋自不併予及之，均併此敘明。


J. Y. Interpretation No.   595
Date：2005.5.6
Issue：Which court should have the jurisdiction over a dispute arising in connection with the Bureau of Labor Insurance’s claim in subrogation after the said Bureau made advances of arrear wages that should have been paid by an employer?

Holding：
According to Article 28-I and –II of the Labor Standards Act, an employer shall make deposits into an “arrear wage advance fund” at a fixed rate (hereinafter referred to as “Arrear Wage Advance Fund”), and, in the case of an employer winding up or liquidating his or her business or being adjudicated bankrupt, a worker shall be entitled to payment of wages out of the said fund which have been overdue for a period not exceeding six months so as to protect the rights and interests of the worker and maintain the stability of his or her livelihood. Paragraph IV of the same Article provides, “Where a worker is not paid arrear wages after having requested payment from the employer, the arrear wages shall be disbursed from the said arrear wage advance fund, whereupon the employer shall reimburse the said fund within the prescribed time limit.” Furthermore, the first half of Article 14-I of the Regulations Governing the Appropriation and Advances of Arrear Wages (hereinafter referred to as the “Advance Regulations”) provides, “The Bureau of Labor Insurance, after making advances of arrear wages that should have been paid by an employer according to Article 28 of the said Act, may exercise the first-priority claim for wages in subrogation under its own name (hereinafter referred to as “Claim for Wages”).” Accordingly, the payment advanced by the Bureau of Labor Insurance is, in essence, a private debt owed by the employer to the worker, i.e., wages. The right to claim in subrogation vested with the said Bureau after advancing the payment out of the Arrear Wage Advance Fund (i.e., an assigned claim under the civil law; similarly hereinafter) is a transfer of claim pursuant to statutory provisions, and the private nature of such claim should not be changed because it is exercised by a state organ. Therefore, an ordinary court shall have jurisdiction over a private dispute arising in connection with the Bureau of Labor Insurance’s claim in subrogation after the said Bureau made advances of arrear wages that should have been paid by an employer.

Reasoning：
Article 28-I of the Labor Standards Act provides, “In the case of an employer winding up or liquidating his or her business or being adjudicated bankrupt, the worker shall have a preferred right to payment of wages which are payable under the labor contracts and which have been overdue for a period not exceeding six months.” And, the first half of Paragraph II thereof provides, “An employer shall make a monthly deduction at a fixed rate of the insured wages of workers and deposit the same in an "arrear wage advance fund" created for the purpose of paying the arrear wages referred to in the preceding paragraph.” The foregoing provisions are set forth by the Government for the purposes of protecting the rights and interests of workers, relieving the financial predicament of laborers, and furthering social stability and economic development. They are designed to prevent a worker from suffering damages due to non-payment of wages which are payable under the labor contracts resulting from the employer’s poor operation, bankruptcy or malicious shutdown. Under the said provisions, an employer must deposit a certain amount in the Arrear Wage Advance Fund at a fixed rate and, in the case of an employer winding up or liquidating his or her business or being adjudicated bankrupt, a worker shall be entitled to payment of wages out of the said fund which have been overdue for a period not exceeding six months so as to guarantee the payment of the worker’s wages to that extent.

Article 28-IV of the aforesaid Act provides, “Where a worker is not paid arrear wages after having requested payment from the employer, the arrear wages shall be disbursed from the said arrear wage advance fund, whereupon the employer shall reimburse the said fund within the prescribed time limit.” Furthermore, the first half of Article 14-I of the Advance Regulations, which is established pursuant to the aforesaid Article 28, provides, “The Bureau of Labor Insurance, after making advances of arrear wages that should have been paid by an employer according to Article 28 of the said Act, may exercise the first-priority claim for wages in subrogation under its own name.” Accordingly, the payment advanced by the Bureau of Labor Insurance is, in essence, a private debt owed by the employer to the worker, i.e., wages. Despite the fact that the Arrear Wage Advance Fund is established and managed by the central competent authority, the source of such fund derives from payments made by employers. The authority’s act of making advances is not a payment made under any public law to the people out of treasury funds, but instead is the provision of the fund collected from business owners to workers of a poorly operated business to ensure that such workers receive the aforesaid arrear wages. The Bureau of Labor Insurance, after making advances of arrear wages to the workers, will be entitled to make a first-priority claim for wages in subrogation. The scope, content and nature of such claim are identical to those of the original claim for wages under private law. In addition, while exercising the said claim in subrogation for the purpose of the Arrear Wage Advance Fund, the Bureau of Labor Insurance is essentially placing itself in the shoes of the worker. The nature of such claim does not change because the Arrear Wage Advance Fund is managed by a commission established by the central competent authority, or because the matters concerning the collection and custody of contributions to the said fund are managed by the labor insurance agency (See Article 28-V of the Labor Standards Act), or because the Arrear Wage Advance Fund is established in the interest of the public. In other words, the transfer of the original claim for wages from the workers to the Bureau of Labor Insurance is a transfer of claim pursuant to statutory provisions, and the private nature of such claim should not be changed because it is exercised by a state organ. Therefore, an ordinary court shall have jurisdiction over a private dispute arising in connection with the aforesaid claim. As regards an employer’s breach of duty to make contributions to the said fund, a monetary fine shall be determined and imposed under Article 79 (i) of the Labor Standards Act as amended and promulgated on December 25, 2002. Since the said act is a breach of duty under public law, the applicable procedures for administrative litigation should be followed.

As an additional note, this matter has been brought to the attention of this Court because the agency filing the petition at issue was of a different opinion from other agencies as to the jurisdiction over legal actions arising in connection with the provisions of Article 28 of the Labor Standards Act and Article 14 of the Regulations Governing the Appropriation and Advances of Arrear Wages. Thus, a petition for uniform interpretation in that respect has been initiated. It should also be noted that, since the connotations of the right of instituting legal proceedings under Article 16 of the Constitution, as well as the respective provisions of the Code of Civil Procedure and of the Code of Administrative Procedure, are not the subject matters of the petition at issue, this Interpretation is not intended to cover the same.

'Translated by Vincent C. Kuan.