簡評行政法院有關勞工保險「境外僱用」與「申報主義」之見解－以臺北高等行政法院100年度訴字第1767號判決為例

Abstract

This article aims at analyzing two legal issues of the 100 Nien- Du Su-Tze No. 1767 decision of the Taipei High Administrative Court, particularly about the legal status of transnational employees in domestic social insurance systems and the so called ＂enrollment principle＂ developed from administrative practices of the labor insurance bureau and recognized by the decisions of the administrative courts. Regarding to the former issue, this article will base on the international social law theories to discuss how domestic social insurance laws provide the rights and obligations of transnational employees. Regarding to the later one, this article will examine the unbalance and uncertainty of legal relationship between the insurer and insured caused by the ＂enrollment principle＂ in light of the fundamental principles of social insurance law and administrative law. Furthermore the article will introduce the regulations of the 4th. Part of the German Social Law Code which orders not only the obligations of insurer to investigate periodically the authenticity of employment and salary of insured, but also the procedural right of employers and employees to confirm their legal status. Such a legislation provides a clear model of fair legal relationship of social insurance and reciprocal rights and obligations between insurers and insured.