Article 2 Sub-paragraph 6 of the Labor Standards Act provides that “labor contract means an agreement that establishes an employee-employer relationship.” (hereinafter “Concerned Provision I”). Regarding the issue whether the legal relationship between an insurance solicitor and an insurance company is a labor contract under Concerned Provision I, the final and conclusive judgment of the Taipei High Administrative Court (103-Chien-Shan-Tze No. 115, hereinafter “Administrative Court Judgment”) is of the opinion that according to the provisions of the Regulations Governing the Supervision of Insurance Solicitors, an insurance company has strong powers of supervision, review, management and discipline over the insurance solicitors belonging to it, there exists a subordination between them; as to the manner of remuneration payment, be it paid by hour, by day, by month, by piece or whether there is base salary, it is not a factor to be considered to decide whether it belongs to a labor’s wage; therefore, if a commission insurance solicitor whose bonus is solely based on the amount of performance is subject to the same management and supervision of the company as is a solicitor with base salary, and is engaged in the provision of service of specific category, the insurance solicitor is still a labor under a labor contract; a labor contract is not limited to the employment contract under the Civil Code. Any contract for the provision of service which bears the characteristics of subordinate laboring shall still be considered a labor contract even though contemporaneously bearing the characteristics of hire of work or mandate; in addition, where there is difficulty in distinguishing the types of contracts, in light of the position of labor protection and the consideration that an employer is more able to adapt to the risk of disadvantage incurred from the ambiguous classification of service, it is in principle to be considered a labor contract to govern the issues. On the contrary, the final and conclusive judgments of Taiwan High Court (94-Lao-Shan-Tze No. 45, 99-Lao-Shan-Tze 58, 101-Lao-Shan-Tze No. 21, hereinafter collectively “Civil Court Judgments”) are of the opinion that an insurance solicitor may freely decide the time, location and method of soliciting insurance business, and the process of provision of service is not subject to an insurance company’s direction, supervision and control, it is very weak to confirm the existence of personal subordination as well as direction and supervision relationship between an insurance solicitor and an insurance company, and therefore it is hard to support the relationship of labor contract; and, an insurance solicitor is not afforded with the protection of minimum wage, only after the solicited customer signs an insurance contract and the insurance premium is collected, can the insurance solicitor be entitled to payment of remuneration calculated in proportion to the collected insurance premium. The insurance solicitor bears the same risks as the insurance company does. The provision of service is for the operation of own business, and not dependent on an insurance company to contribute labor. Therefore, it is hard to conclude that there exists an economic subordination between them; in addition, the Regulations Governing the Supervision of Insurance Solicitors are promulgated by the competent authority for the purpose of administrative regulation to strengthen the management of insurance solicitors and to protect the insured’s rights and interests, and to be complied with by insurance companies. It cannot be concluded that there is personal character subordination between an insurance solicitor and the insurance company to which the insurance solicitor belongs simply because of the provisions of the Regulations Governing the Supervision of Insurance Solicitors. Given the above, there is different opinion between Civil Court and Administrative Court regarding whether a service contract for the solicitation of insurance business between an insurance solicitor and the insurance company to which the solicitor belongs is a labor contract under Concerned Provision I, which difference qualifies the requirement for Unified Interpretation under Article 7 Paragraph 1 Sub-paragraph 2 of the Constitutional Interpretation Procedure Act.
Article 2 Sub-paragraph 6 of the Labor Standards Act, which provision is “labor contract means an agreement that establishes an employee-employer relationship”, does not set forth the delineating standards for labor contract and employee-employer relationship. The main performance under a labor contract is the provision of service and the payment of remuneration. But not all contracts under the Civil Code which provide labor service non-gratuitously belong to labor contract. Therefore, to determine whether it is a labor contract under Concerned Provision I, the nature of the provision of service, which shall be defined according to the categorical characteristics of the respective service contract objectively on a case by case basis, such as a direction and supervision relationship with regard to the time, location or specialty of the provision of service, which is related to personal subordination (or called personal character subordination), and the bearing of business risk shall be taken into account.
Regarding the service contract which an insurance solicitor signs to solicit insurance business for the insurance company to which the insurance solicitor belongs, based on the principle of party autonomy, there is freedom of choice for formality and contents; whose type may be employment, mandate, hire of work or brokerage. Whether the chosen type is a labor contract under Concerned Provision I shall be determined by the individual facts and the whole contents of a contract, according to the categorical characteristics of the service contract and in light of the high or low degree of subordination between a service debtor and a service creditor, that is, it shall be determined dependent on whether an insurance solicitor may freely decide the manner of the provision of service (including working hours), and bear business risks on own account (for example, the remuneration shall be calculated on the basis of insurance premium received from the solicited insurance). An insurance solicitor, under the insurance solicitation service contract concluded with the insurance company to which the insurance solicitor belongs, may only sell the insurance policy of that insurance company, but if the insurance solicitor may freely decide the actual service activities of insurance solicitation and the working hours, and there is no base salary or minimum performance requirement for the remuneration, and the insurance solicitor bears the business risk on own account, then the degree of subordination between the insurance solicitor and the insurance company is not high, it cannot be concluded that it is a labor contract under Concerned Provision I. In addition, the Regulations Governing the Supervision of Insurance Solicitors are promulgated according to Article 177 of the Insurance Act, of which the purpose is to strengthen the administrative regulation of insurance solicitor’s solicitation of insurance business. It is not to restrict that the type of provision of service between insurance company and its belonging solicitor shall be employment relationship (cf. Financial Supervisory Commission letter: 102.3.22-Gin-Guan-Bao-Shou-Tze No. 1020543170). These Regulations are statutory instrument promulgated by the competent authority in charge of Insurance Act to perform its duties in managing and regulating insurance solicitors; there is no necessary connection with the classification of the insurance solicitation service contract between the insurance solicitor and the insurance company to which the insurance solicitor belongs. Therefore, it cannot be determined directly in accordance with the said Regulations whether there constitutes a labor contract between the insurance solicitor and the insurance company to which the insurance solicitor belongs.
On the other hand, the petitioner argued that Articles 3, 6, 7 Paragraph 1 Sub-paragraph 1, 9 of the Labor Pension Act (hereinafter collectively “Concerned Provision II”), Article 189 Paragraph 1 of the Administrative Procedure Act (hereinafter “Concerned Provision III”), Articles 12 Paragraph 1, 13, 14 Paragraph 1, 18 Paragraph 1 and 19 Paragraph 1 of the Regulations Governing the Supervision of Insurance Solicitors (hereinafter collectively “Concerned Provision IV”) and the Precedent of Administrative Court (62-Pan-Tze No. 252, hereinafter “Concerned Precedent”) as applied by the aforementioned Administrative Court Judgment, the judgments of Administrative Supreme Court (100-Pan-Tze Nos. 2117, 2226 and 2230) (hereinafter collectively “Final and Conclusive Judgments”) are liable for violation of the Constitution and applied for Constitutional Interpretation. However, because the Concerned Provision III and the Concerned Precedent were not been applied by the Final and Conclusive Judgments, the petitioner cannot apply for Interpretation based on them. Petitioner’s other arguments presented did not objectively and concretely point out the breach of the Constitution by the Concerned Provision II and IV. The above petition for Constitutional Interpretation is incompliant with Article 5 Paragraph 1 Sub-paragraph 2 of the Constitutional Interpretation Procedure Act, and shall be procedurally rejected. It is so noted.
______________________
＊ Translated by Chun-yih CHENG.