| 摘要: | 隨著共享經濟發展，興起平台經濟的浪潮，消費者透過美食外送網路平台享受外送服務的便利，外送員透過該平台提供外送服務並獲取報酬，亦促進零工經濟。2019年外送員執行業務時發生多起事故，外送員於事故時是否受有足夠保障，取決於外送員與平台之法律關係，業者對此主張外送員為承攬人而非受僱人，惟勞動部認為大部分的平台與外送員間屬僱傭關係而非承攬關係，關於該法律關係之認定，非無疑義。
本文首先論述學說與實務對各個勞務契約之性質與效力，並闡述僱傭、承攬、居間及狹義勞動契約之區別實益，研究國際勞工組織、歐盟、英國、美國、澳洲及瑞典對新興平台經濟之規範與相關司法判決，作為我國法制因應的他山之石。關於我國平台業者與外送員之權利與義務，本文闡述目前政府對平台業者之規範性質、內容與違反效果；並以Foodpanda、Uber Eats和Deliveroo為例，提及各個平台業者的營運模式與外送員之權利義務。接著探討平台與外送員之勞動從屬性，論及業者說法和勞動部見解，並提出本文分析與意見。最後，本文參考相關調查報告與外國法制，嘗試提出勞動關係認定與法制因應之建議，改善現行制度，期待能保障勞動權益並兼顧產業發展。
;As the development of the sharing economy, the platform economy has made progress. The consumer enjoys the convenience of delivery services through the food delivery online platform. The delivery person provides delivery services and get income through the platform. The platform economy also promotes the gig economy. In 2019, many traffic accidents happened during commercial food deliveries. Whether the delivery person was adequately protected when the accident happened is decided by the legal relationship between the delivery person and the platform. The platform operator thinks the delivery person is an independent contractor not an employee. However, Ministry of Labor advocates the relationship between the platform and the delivery person is employment relationship rather than a contractual relationship. It’s not undoubtedly sure to affirm the legal relationship.
First, this thesis focuses on the doctrine and judicial decision about the characteristic and effect of individual labour contract, and elaborates the distinctive benefit between employment, contracting, intermediary and labor contract on narrow difinition. Also, the research take the regulation and judicial decision of rising platform economy in International Labour Organization, European Union, United Kingdom, United States, Australia and Sweden as the paradigm about the legal response and advice in Taiwan. Regarding the rights and obligations of the platform operators and delivery person in Taiwan, this thesis sets forth the characteristic, content and violation effect of current regulation on platform operators. Moreover, the thesis takes Foodpanda, Uber Eats and Deliveroo as examples to expound the operational modes of platform, and rights of delivery person. The thesis discusses the empoyment subordinate of the platform and delivery person. The thesis reviews the argument between the industry and the Ministry of Labor′s, and puts forward the analysis and opinions of this thesis. Finally, concidering the industry survey and foreign legal systems, this thesis attempts to propose suggestions regading the determination of employment relationship and legal response to improve the the current legislation. The thesis looks forward to find the legal equilibrium between labour rights and industrial development. |
