兔寶寶痞客邦 首頁 網站導覽 加入最愛
English日本語

重要實務

2014/4/10 高雄律師楊岡儒律師【保險重要實務】勞委會就因傷病請領死亡給付增加條件之函釋違憲。

2014.4.10 高雄律師楊岡儒律師

發文單位:司法院
解釋字號:釋字第609號
解釋日期:民國95年1月27日
解釋爭點:勞委會就因傷病請領死亡給付增加條件之函釋違憲?
資料來源:
司法周刊 第 1273 期 1 版
司法院公報 第 48 卷 4 期 1-15 頁
司法院大法官解釋續編(十九)第 18-35 頁
考選周刊 第 1054 期 2 版
法令月刊 第 57 卷 2 期 95-96 頁
總統府公報 第 6680 號 22-48 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 ( 94.06.10 )
勞工保險條例 第 19、24、62、63、64、70 條 ( 84.02.28 )

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、保險事故之種類及保險給付之履行等,攸關勞工或其受益人因保險關係所生之權利義務事項,或對其權利之限制,應以法律或法律明確授權之命令予以規範,且其立法之目的與手段,亦須符合憲法第二十三條之規定,始為憲法所許。中華民國八十四年二月二十八日修正之勞工保險條例第十九條第一項規定:「被保險人或其受益人,於保險效力開始後,停止前發生保險事故者,得依本條例規定,請領保險給付。」依同條例第六十二條至第六十四條之規定,死亡給付之保險事故,除法律有特別排除規定外(同條例第二十三條、第二十六條參照),係指被保險人或其父母、配偶、子女死亡而言,至其死亡之原因何時發生,應非所問。惟若被保險人於加保時已無工作能力,或以詐欺、其他不正當行為領取保險給付等情事,則屬應取消其被保險人之資格,或應受罰鍰處分,並負民、刑事責任之問題(同條例第二十四條、第七十條參照)。行政院勞工委員會七十七年四月十四日台七七勞保二字第六五三0號函及七十九年三月十日台七九勞保三字第四四五一號函,就依法加保之勞工因罹患癌症等特定病症或其他傷病,於保險有效期間死亡者,以各該傷病須在保險有效期間發生為條件,其受益人始得請領死亡給付,乃對於受益人請領死亡保險給付之權利,增加勞工保險條例所無之限制,與憲法第二十三條所定法律保留原則有違,於此範圍內,應不再適用。

理由書:
勞工保險係國家為實現憲法第一百五十三條第一項保護勞工及第一百五十五條、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福利措施,為社會保險之一種,旨在保障勞工生活安定、促進社會安全,是以勞工保險具有明顯之社會政策目的。勞工依法參加勞工保險之權利,應受憲法之保障。依勞工保險條例 之規定,勞工分擔之保險費係按投保勞工當月之月投保薪資一定比例計算(勞工保險條例第十三條、第十四條參照),與保險事故之危險間並非謹守對價原則,而是 以量能負擔原則維持社會互助之功能;勞工保險除自願參加保險者外,更具有強制性,凡符合一定條件之勞工均應全部參加該保險(同條例第六條、第八條、第七十一條、第七十二條參照),非如商業保險得依個人意願參加。是以各投保單位依勞工保險條例規定為其所屬勞工辦理投保時,勞工保險局對其危險之高低無須為評估 之核保手續,更不能因危險過高而拒絕其投保,各投保單位所屬之勞工對於是否加入勞工保險亦無選擇之權,此類勞工應依法一律強制加入勞工保險,繳納保險費,分擔自己與其他加保勞工所生保險事故之危險,此均與商業保險有間。又勞工保險因具社會保險之性質,對於何種保險事故始應為保險給付,立法機關自得衡酌勞工 保險政策之目的、社會安全制度之妥適建立、勞工權益之保護、社會整體資源之分配及國家財政之負擔能力等因素,本於前述意旨形成一定之必要照顧範圍。勞工依法參加勞工保險所生之公法上權利,亦應受憲法之保障。關於保險效力之開始、停止、終止、保險事故之種類及保險給付之履行等,攸關勞工或其受益人因保險關係 所生之權利義務事項,或對其權利之限制,應以法律或法律明確授權之命令予以規範,且其立法之目的與手段,亦須符合憲法第二十三條之規定,始為憲法所許。
        勞工保險條例第十九條第一項規定:「被保險人或其受益人,於保險效力開始後,停止前發生保險事故者,得依本條例規定,請領保險給付。」就保險事故發生之原因 係於何時存在未設任何限制。於普通事故保險,依勞工保險條例第二條及第四章之規定,保險給付計有生育給付、傷病給付、醫療給付、殘廢給付、失業給付、老年給付及死亡給付七種,各承保不同之特定保險事故。依同條例第六十二條至第六十四條之規定,死亡給付所承保之保險事故,除法律有特別排除規定外(同條例第二 十三條、第二十六條參照),係指被保險人或其父母、配偶、子女死亡而言,至其死亡之原因何時發生,則非所問。蓋死亡給付乃在避免勞工於勞動期間內死亡時對 家庭或受扶養親屬所造成之經濟上困頓,而以保險給付維持其生活,以符憲法保障勞工之意旨。至若被保險人於加保前,已因嚴重之傷病而不具工作能力,卻參加保 險,係應取消其被保險人資格(同條例第二十四條參照);甚或有以詐欺或其他不正當行為領取保險給付等情事,則屬應受罰鍰之處分,並負民、刑事責任之問題 (同條例第七十條參照)。
        行政院勞工委員會七十七年四月十四日台七七勞保二字第六五三0號函謂:「依同條例(勞工保險條例)第十九條規定,被保險人或其受益人請領保險給付,以於保險 效力開始後停止前發生保險事故者為限,故有關勞工於加保前發生事故導致之殘廢或死亡,應不予核發任何保險給付。」就勞工於加保前發生傷病導致之死亡,增加 該死亡給付保險事故之原因須於保險有效期間發生,始得為保險給付之條件;同委員會七十九年三月十日台七九勞保三字第四四五一號函謂:「被保險人如經查證於 加保前已有嚴重身心障害或明顯外在症狀或已診斷確定罹患紅斑性狼瘡症、癌症及尿毒症等疾病者,均不得就該事故請領現金給付及醫療給付。」其中現金給付涵蓋 死亡給付,是就請領死亡給付增加「於加保前須無罹患各該特定疾病」之條件。上開函釋適用於死亡給付部分,就依法加保之勞工因罹患癌症等特定病症或其他傷病,於保險有效期間死亡者,以各該傷病須在保險有效期間發生為條件,其受益人始得請領死亡給付,乃對於受益人請領死亡保險給付之權利,增加勞工保險條例所 無之限制,與憲法第二十三條所定法律保留原則有違,於此範圍內,應不再適用。至罹患何種特定疾病及其與保險有效期間之時間上如何關聯,得依保險法理並參酌 其他社會安全制度,排除於勞工保險給付之外,乃屬立法形成問題。
        行政院勞工委員會八十二年三月十六日台八二勞保三字第一五八六五號函謂:「有關被保險人如經查證於加保前已診斷確定罹患紅斑性狼瘡及癌症,歷經『緩解期』 (Remission)於加保後再發病者,視為加保生效後發生之事故,得依勞工保險條例之規定請領保險給付。」係就加保前罹患紅斑性狼瘡及癌症,歷經緩解 期於加保後再發病之勞工,為有利之闡示,與勞工於加保前已罹患特定疾病,於保險有效期間,因該特定疾病死亡時,得否請領死亡給付尚無關聯,非屬本件解釋範圍,併此敘明。

J. Y. Interpretation No.   609
Date:2006.1.27
Issue:Are the relevant directives issued by the Council of Labor Affairs, which imposed additional conditions on the claims for death benefits arising from injury or sickness, unconstitutional?

Holding:
A worker’s right to enroll in the labor insurance program pursuant to law, as well as his or her rights arising therefrom under public law, shall be protected by the Constitution. Since the suspension and termination of the effectiveness of the insurance, types of insurance contingencies, and distribution of insurance benefits, closely concern the rights and obligations of a worker or of his or her beneficiaries which arise in connection with the insurance, such matters should be regulated either by law or by orders clearly and definitely authorized by law. Additionally, the legislative purposes and means thereof will not be constitutional unless they are consistent with the provisions of Article 23 of the Constitution. Article 19-I of the Labor Insurance Act as amended on February 28, 1995 provides, “Upon the occurrence of an insurance contingency covered by the insurance after the beginning and before the end of the effective period of the insurance, an insured person or his beneficiary may claim insurance benefit payments pursuant to the provisions of this Act.” According to Articles 62 to 64 of said Act, the insurance contingencies for death benefits, unless specifically excluded by law (See Articles 23 and 26 of said Act), shall refer to the death of an insured person or his or her parent, spouse or child, irrespective of the time when the cause of the death occurs. However, in case an insured person has already lost his or her ability to work at the time of participating in an insurance program, or receives insurance benefits through fraudulent or other improper acts, the insured person should either be disqualified, or subject to administrative fine and civil and/or criminal liabilities (See Articles 24 and 70 of said Act). The Directive Ref. No. T77LB2-6530 issued by the Council of Labor Affairs on April 14, 1988, as well as the Directive Ref. No. T79LB3-4451 issued by same on March 10, 1990, stated that a beneficiary of an insured person who participated in the labor insurance program pursuant to law and died of cancer or any other specified disease or injury or sickness during the effective period of the insurance may not claim death benefits unless the respective injury or sickness occurred during the effective period of the insurance. The foregoing directives have imposed additional restrictions on the right of a beneficiary to claim insurance benefit payments, which are not provided for by the Labor Insurance Act. As such, they are inconsistent with the principle of legal reservation as embodied by Article 23 of the Constitution and shall no longer apply to the extent of such inconsistency.

Reasoning:
Labor insurance is a social welfare program established by the State to implement and enforce the fundamental national policies to protect workers as provided in Article 153-I of the Constitution and to provide a social insurance system as described in Article 155 thereof and Article 10-VIII of the Amendments to the Constitution. Labor insurance, which is a type of social insurance, is intended to ensure the stability of workers’ lives and to promote social security. As such, labor insurance has a clear social policy purpose. A worker’s right to participate in the labor insurance program pursuant to law shall be protected by the Constitution. According to the Labor Insurance Act, the insurance premium contributed by a worker is calculated based on a certain percentage of the insured worker's monthly insurance salary (See Articles 13 and 14 of the Labor Insurance Act). As such, the payment of insurance premium is not exactly in proportion to the risks of the insurance contingencies. Instead, the function of social and mutual aid is maintained under the principle of the ability to pay. Furthermore, unlike commercial insurance where an individual may decide of his or her own volition whether to participate in the insurance program or not, the labor insurance is a type of mandatory insurance except for those who participate in the insurance voluntarily, which means that whoever meets certain conditions shall participate in the insurance program (See Articles 6, 8, 71 and 72 of said Act). Therefore, the Labor Insurance Bureau is not required to assess the likelihood of the risks involved for any particular worker when an insured unit applies for the insurance coverage for its workers in accordance with the provisions of the Labor Insurance Act, let alone to reject the application for said insurance on the ground that there exist significant risks. Besides, the employees of an insured unit have no choice but to participate in the labor insurance program since they should, by law, participate in the insurance program without exception, paying insurance premiums and sharing the risks of the insurance contingencies that may occur to themselves and other insured workers. Moreover, since labor insurance is, in essence, a form of social insurance, the legislature may, of course, decide upon the scope of its coverage after considering such factors as the purposes of the labor insurance policies, proper implementation of the social security system, protection of workers’ rights and interests, distribution of overall social resources, financial burden of the State, and so forth. A worker’s rights arising from participation in the labor insurance program under public law shall also be protected by the Constitution. Since the suspension and termination of the effectiveness of the insurance, types of insurance contingencies, and distribution of insurance benefits closely concern the rights and obligations of a worker or of his or her beneficiaries which arise in connection with the insurance, such matters should be regulated either by law or by orders clearly and definitely authorized by law. Additionally, the legislative purposes and means thereof will not be constitutional unless they are consistent with the provisions of Article 23 of the Constitution.
Article 19-I of the Labor Insurance Act as amended on February 28, 1995 provides, “Upon the occurrence of an insurance contingency covered by the insurance after the beginning and before the end of the effective period of the insurance, an insured person or his beneficiary may claim insurance benefit payments pursuant to the provisions of this Act.” The foregoing provision does not impose any restriction on the time when the cause of the insurance contingency occurs. In respect of ordinary injury insurance, Article 2 and Chapter IV of the Labor Insurance Act provide for seven kinds of benefits, namely those for maternity, injury and sickness, medical care, disability, unemployment, old age and death, covering a variety of specific insurance contingencies. According to Articles 62 to 64 of said Act, the insurance contingencies for death benefits, unless specifically excluded by law (See Articles 23 and 26 of said Act), shall refer to the death of an insured person or his or her parent, spouse or child, irrespective of the time when the cause of the death occurs. After all, death benefits are meant to prevent the economic hardships that may burden the family or dependents of a worker who died during his or her service by sustaining their livelihood through insurance benefits, thereby conforming to the constitutional intent to protect workers. However, in case an insured person already lost his or her ability to work due to serious injury or sickness prior to participating in an insurance program but participated in such insurance anyway, the insured person should be disqualified (See Article 24 of said Act). In an even worse scenario, in case an insured person receives insurance benefits through fraudulent or other improper acts, he or she should be subject to administrative fine, as well as civil and/or criminal liabilities (See Article 70 of said Act).
The Directive Ref. No. T77LB2-6530 issued by the Council of Labor Affairs on April 14, 1988 read, “Where an insured person or his or her beneficiary claims insurance benefit payments pursuant to Article 19 of said Act (Labor Insurance Act), the insurance contingency covered by the insurance should occur after the beginning and before the end of the effective period of the insurance. Thus, no insurance benefit payments should be made for any disability or death of a worker resulting from a contingency that had occurred before the worker enrolled in the insurance program.” In respect of the death of a worker resulting from any injury or sickness occurring prior to his or her participating in the insurance program, the foregoing directive has imposed an additional condition that no insurance benefit payments should be made unless the cause of the insurance contingency occurred during the effective period of the insurance. The Directive Ref. No. T79LB3-4451 issued by the same Council on March 10, 1990 read, “In case an insured person is confirmed to have contracted any serious physical or mental disease or apparent external symptoms, or to have been positively diagnosed as suffering from such diseases as lupus erythematosus, cancer or uremia prior to his or her participating in the insurance program, neither cash benefit nor medicalcare benefit should be claimed for that particular contingency.” Since the cash benefit mentioned above covers death benefits, the foregoing directive is considered to have imposed an additional condition on the claim for death benefits by stipulating “no prior disease of the specified kinds before participating in the insurance program.” To the extent that the aforesaid directives apply to death benefits, they have imposed additional restrictions on the right of a beneficiary to claim insurance benefit payments, which are not provided for by the Labor Insurance Act, because they state that a beneficiary of an insured person who articipated in the labor insurance program pursuant to law and died of cancer or any other specified disease or injury or sickness during the effective period of the insurance may not claim death benefits unless the respective injury or sickness occurred during the effective period of the insurance. As such, they are inconsistent with the principle of legal reservation as embodied by Article 23 of the Constitution and shall no longer apply to the extent of such inconsistency. As for the correlation between the suffering from any particular diseases and the effective period of insurance, as well as the exclusion of such diseases from labor insurance benefits based on rationales of insurance law and considerations of other social security systems, it should be an issue subject to legislative discretion.
The Directive Ref. No. T82LB315865 issued by the Council of Labor Affairs on March 16, 1993 stated, “In case an insured person is confirmed to have been positively diagnosed as suffering from lupus erythematosus or cancer prior to his or her participation in the insurance program, and he or she had a relapse through a period of remission after enrolling in the insurance program, the contingency should be regarded as having occurred after the effective period of the insurance and thus insurance benefit may be claimed in accordance with the provisions of the Labor Insurance Act.” The aforesaid directive has made an interpretation in favor of a worker who suffered from lupus erythematosus or cancer prior to his or her participation in the insurance program and had a relapse through a period of remission after joining the insurance program, which does not relate to the issue of whether death benefits may be claimed in respect of a worker who, during the effective period of the insurance, died of any specified disease from which he or she already suffered prior to his or her participation in the insurance program. Thus, it should be noted that it is beyond the scope of this Interpretation. 'Translated by Vincent C. Kuan.



圖片



上一則   |   回上頁   |   下一則