勞動契約從屬性認定標準之趨勢與反思: 兼論平台工作者之「勞工性」

In Taiwan's civil law, Types of service contract include an employment contract, a mandate contract or a contract of hire of work. However, only employees will fall in the protection of labor laws. Thus, the definition of employee plays the role of goalkeeper in laws regarding labor protection. Article 2, paragraph 6 of the Labor Standards Act was amended on 15th May, 2019. The amendment defines the employment contract as ＂an agreement that establishes an employee-employer relationship with subordination to authority.＂ However, it does not solve the difficulty in defining employee. The status of employee is still an ＂all-or-none＂ problem. Taiwan's theory and practice have long depends on subordinate test, including personal subordination, organizational subordination and financial subordination, to define employee. The definition of labor is quite narrow. Recently, the rise of the digital economy leads to the development of crowd outsourcing and gig economy. Under this trend, different from focusing on the problem of de-employment relationship in the past, some suggest developing new definition of employee or enacting protective law for ＂employee-like working persons.＂ Nonetheless, the most urgent task is to clarify the concept of subordination test, and the definition and relationship of the three subordinates. Germany passed Article 611a of Civil Code on 1st April, 2017 which legalized the definition of employees. In Taiwan, Interpretation No. 740, released on 21st October, 2016, determined the nature of insurance solicitor's service contract by whether a worker is free to determine its payment and whether the worker should bear the business risk by himself. This study starts with the development of subordinate test. To avoid the scope of labor law getting more and more narrow, causing Taiwan's workers face the crisis of de-employment relationship, this article will also review the meaning of subordinate test and its relationship with labor protection.