대만 노동기준법과 기업인수･합병법상의 고용승계결정권[商定留用權]에 대한 소고

In Article 20 of Labor Standards Act and Paragraph 1 of Article 16, Article 17 of Business Mergers and Acquisitions Act in Taiwan, when companies go through the procedures of restructuring/ownership changing/merger/consolidation/acquisition/division, new employer and original employer are entitled to select employees, whom from the original employer, to retain and stay with the new employer, which is so-called the right to agree on the continuance of employment. The years of services of retained employees shall be recognized by the new employer. While the original employer shall terminate employment contracts by giving advanced notice and paying the severance payment to those not to be retained. Nonetheless, the right to agree on the continuance of employment has derived many discussions and controversies. This article started from one of the famous cases in 2021 in Taiwan. One company (Co., Ltd) went through the division procedure and was divided into four companies while the director of these four remained the same person. They then utilized the right to agree on the continuance of employment, select retained employees, and terminate employment contracts with those who are members of the laborer union of the company. From the abovementioned case, the author threw back to the discussion of whether the right to agree on the continuance of employment shall be remained or removed, which was once been highly discussed when the draft amendment of Article 20 of the Labor Standards Act in 2010 was released. On the other hand, the author reexamined past judicial cases to figure out the balance between the right to agree on the continuance of employment and the principle of termination as the last resort. The court pointed out that if two (or above) legal entities substantially shared the same legal entity, in which the financial management, operation strategy, human resource arrangement, etc are together controlled by only one entity, then the legal entities shall be disregarded and viewed them as one. In this situation, the original employer has to make sure no suitable positions in both the original employer's side and the new employer's side for unretained employees before termination (See Supreme Court decision No. 2020-Tai-Shang-Zhi-1396). In another case, the two companies shall not even be entitled to the right to agree on the continuance of employment from Article 16 and Article 17 of the Business Mergers and Acquisitions Act (See Taiwan High Court, Tainan Branch Court No. 2019-Loau-Su-Zhi-25). These judicial cases can solve the problem of companies that substantially share the same entity to abusively use the right to agree on the continuance of employment. However, the abusive use of the aforementioned right cannot be solved by the opinions of the judicial cases in other cases in which companies are separated entities. Whether the right to agree on the continuance of employment shall be remained or removed involves how to balance between the efficiency in M&A cases and employees’ right to work, which has no easy solutions or answers. For those who support removing the right, the problem of manpower redundancy and the conflict between employees from the old employer and employees originally hired by the new employer might have to be considered. On the other hand, those who support to remain the right might have to consider that the procedure of how to select whom to retain be more transparent, and also provide the protection of rights to work toward employees not being retained.