移工的社會安全權 - 以平等對待及權利保留為核心 政治大學法學院教授 郭明政

移工？ 移工： 1、移入與移出 2、藍領與白領 （1）移入之藍領 （2）移入之白領 （3）移出之籃領 （4）移出之白領

社會安全權 人權宣言第22條： 每個人，作為社會的一員，有權享受社會安全，並有權享受他的個人尊嚴和人格的自由發 展所必需的經濟、社會和文化方面各種權利的實現，這種實現是通 過國家努力和國際合作並依照各國的組織和資源情況。 經社文權利公約第9條： 第 九 條 本公約締約國確認人人有權享受社會保障，包括社會保 險。

社會安全權在台灣 憲法第22條：凡人民知其它自由及權利，不妨害社會秩序公共利益指，均受憲法之保障。 民法第72條：法律行為，有背於公共秩序或善良風俗者，無效。

大法官解釋549號 勞工保險條例第二十七條規定：「被保險人之養子女，其收養登記在保險事故發生時未滿 六個月者，不得享有領取保險給付之權利。」固有推行社會安全暨防止詐領保險給付之意， 而同條例第六十三條至第六十五條有關遺屬津貼之規定，雖係基於倫常關係及照護扶養遺 屬之原則，惟為貫徹國家負生存照顧義務之憲法意旨，並兼顧養子女及其他遺屬確受被保 險人生前扶養暨無謀生能力之事實，勞工保險條例第二十七條及第六十三條至第六十五條 規定應於本解釋公布之日起二年內予以修正，並依前述解釋意旨就遺屬津貼等保險給付及 與此相關事項，參酌有關國際勞工公約及社會安全如年金制度等通盤檢討設計。

移工的社會安全權 經社文權利公約 經社文權利公約第2條： 第 二 條 一 本公約締約國承允盡其資源能力所及，各自並藉國際 協助與合作，特別在經濟與技術方面之協助與合作採 取種種步驟，務期以所有適當方法，尤其包括通過立 法措施，逐漸使本公約所確認之各種權利完全實現。 二 本公約締約國承允保證人人行使本公約所載之各種 權利，不因種族、膚色、性別、語言、宗教、政見或 其他主張、民族本源或社會階級、財產、出生或其他 身分等等而受歧視。 三 發展中國家在適當顧及人權及國民經濟之情形下，得 決定保證非本國國民享受本公約所確認經濟權利之 程度。

聯合國 所有移工及其家屬權利保障公約 International convention on the protection of rights of all memmigrant workers and members of their families （1990） 本公約是整合人權宣言、公民與政治權利公約、經社文權利公約以及ILO 29、97、105、 143號公約以及151號建議書等規定而具有「法典化」之整合意義。 此一公約顯然係以移工在經濟社會文化領域，甚至司法程序上之保護為主要內涵，至於 ILO所制訂與社會安全密切關連的公約並未多所納入。。

ILO公約 平等對待：19號公約（1925）、102號公約（1952）、118號公約（1962） 權利保留：48號公約（1935）、157號公約（1982）、167號建議書（1982）

ILO 19號公約（1925） C019 - Equality of Treatment (Accident Compensation) Convention, 1925 (No. 19) Convention concerning Equality of Treatment for National and Foreign Workers as regards Workmen's Compensation for Accidents (Entry into force: 08 Sep 1926) enth Session on 19 May 1925, and Article 1 1. Each Member of the International Labour Organisation which ratifies this Convention undertakes to grant to the nationals of any other Member which shall have ratified the Convention, who suffer personal injury due to industrial accidents happening in its territory, or to their dependants, the same treatment in respect of workmen's compensation as it grants to its own nationals. 2. This equality of treatment shall be guaranteed to foreign workers and their dependants without any condition as to residence. With regard to the payments which a Member or its nationals would have to make outside that Member's territory in the application of this principle, the measures to be adopted shall be regulated, if necessary, by special arrangements between the Members concerned.

ILO 102號社會安全基準公約（1952） Article 68 1. Non-national residents shall have the same rights as national residents: Provided that special rules concerning non-nationals and nationals born outside the territory of the Member may be prescribed in respect of benefits or portions of benefits which are payable wholly or mainly out of public funds and in respect of transitional schemes. 2. Under contributory social security schemes which protect employees, the persons protected who are nationals of another Member which has accepted the obligations of the relevant Part of the Convention shall have, under that Part, the same rights as nationals of the Member concerned: Provided that the application of this paragraph may be made subject to the existence of a bilateral or multilateral agreement providing for reciprocity.

ILO 118號公約 C118 - Equality of Treatment (Social Security) Convention, 1962 (No. 118) Article 2 1. Each Member may accept the obligations of this Convention in respect of any one or more of the following branches of social security for which it has in effective operation legislation covering its own nationals within its own territory: (a) medical care; (b) sickness benefit; (c) maternity benefit; (d) invalidity benefit; (e) old-age benefit; (f) survivors' benefit; (g) employment injury benefit; (h) unemployment benefit; and (i) family benefit.

Article 3 1. Each Member for which this Convention is in force shall grant within its territory to the nationals of any other Member for which the Convention is in force equality of treatment under its legislation with its own nationals, both as regards coverage and as regards the right to benefits, in respect of every branch of social security for which it has accepted the obligations of the Convention. 2. In the case of survivors' benefits, such equality of treatment shall also be granted to the survivors of the nationals of a Member for which the Convention is in force, irrespective of the nationality of such survivors. 3. Nothing in the preceding paragraphs of this Article shall require a Member to apply the provisions of these paragraphs, in respect of the benefits of a specified branch of social security, to the nationals of another Member which has legislation relating to that branch but does not grant equality of treatment in respect thereof to the nationals of the first Member.

Article 6 In addition to the provisions of Article 4, each Member which has accepted the obligations of this Convention in respect of family benefit shall guarantee the grant of family allowances both to its own nationals and to the nationals of any other Member which has accepted the obligations of this Convention for that branch, in respect of children who reside on the territory of any such Member, under conditions and within limits to be agreed upon by the Members concerned.

Article 7 1. Members for which this Convention is in force shall, upon terms being agreed between the Members concerned in accordance with Article 8, endeavour to participate in schemes for the maintenance of the acquired rights and rights in course of acquisition under their legislation of the nationals of Members for which the Convention is in force, for all branches of social security in respect of which the Members concerned have accepted the obligations of the Convention. 2. Such schemes shall provide, in particular, for the totalisation of periods of insurance, employment or residence and of assimilated periods for the purpose of the acquisition, maintenance or recovery of rights and for the calculation of benefits. 3. The cost of invalidity, old-age and survivors' benefits as so determined shall either be shared among the Members concerned, or be borne by the Member on whose territory the beneficiaries reside, as may be agreed upon by the Members concerned.

ILO 48號公約 048 - Maintenance of Migrants' Pension Rights Convention, 1935 (No. 48) Article 2 1. The insurance periods spent by persons who have been affiliated to insurance institutions of two or more Members shall, irrespective of the nationality of such persons, be totalised by each such institution in accordance with the following rules. 2. For the maintenance of rights in course of acquisition the periods to be totalised shall be-- (a) contribution periods; (b) periods in respect of which contributions were not payable but during which rights are maintained under the laws or regulations under which they were spent; (c) periods during which a cash benefit has been paid under an invalidity or old-age insurance scheme of another Member; and (d) periods during which a cash benefit has been paid under some other social insurance scheme of another Member, in so far as a corresponding benefit would, under the laws or regulations governing the institution which is totalising, maintain rights in course of acquisition. 3. For the purposes of-- (i) determining whether any conditions as to the qualifying period (minimum duration of liability to insurance) or the number of contributions prescribed for entitlement to special advantages (guaranteed minima) have been fulfilled; ii) the recovery of rights; (iii) the right to enter voluntary insurance; and (iv) the right to medical treatment and attendance; the periods to be totalised shall be-- (a) contribution periods; and (b) periods in respect of which contributions were not payable but which are counted for the purpose of the qualifying period both under the laws or regulations under which they were spent and under the laws or regulations governing the institution which is totalising. 4. Provided that, where under the laws or regulations of a Member periods spent in an occupation covered by a special scheme are alone to be taken into account for the purpose of determining whether a claimant is entitled to certain advantages, the periods to be totalised for the purpose set forth in paragraphs 2 and 3 shall be restricted to periods spent under the corresponding special insurance schemes of other Members or, in respect of a Member with no special insurance scheme for the occupation concerned, to periods spent in that occupation under the insurance scheme applicable thereto. 5. Contribution periods and assimilated periods spent simultaneously with institutions of two or more Members shall be reckoned once for the purpose of totalisation.

C157 - Maintenance of Social Security Rights Convention, 1982 (No. 157) Article 6 Subject to the provisions of paragraph 3, subparagraph (a), of Article 4 of this Convention, each Member shall endeavour to participate with every other Member concerned in schemes for the maintenance of rights in course of acquisition, as regards each branch of social security referred to in paragraph 1 of Article 2 of this Convention and for which every one of these Members has legislation in force, for the benefit of persons who have been subject successively or alternately to the legislation of the said Members

Article 9 1. Each Member shall guarantee the provision of invalidity, old-age and survivors' cash benefits, pensions in respect of employment injuries and death grants, to which a right is acquired under its legislation, to beneficiaries who are nationals of a Member or refugees or stateless persons, irrespective of their place of residence, subject to measures for this purpose to be taken, where necessary, by agreement between the Members or with the states concerned.

台灣的現況 1. 非UN、ILO會員國 2.政府宣稱接受二人權公約並制訂二人權公約及其它公約之施行法 ３. 台灣未與任何國家簽訂社會協定

台灣的法律 平等對待：勞保、健保亦平等對待適用於外勞 不平等對待：就業保險、退休金條例僅適用於本勞 權利保留： 勞保應年滿年滿60歲始可請領年金，並將逐年延後到６５歲（目前可提前於５６歲開始） 請領年金者應至少投保１５年。 未達１５年者，可以經由國民年金合併計算，並分別領取。 亦即：僅有相對的期待保障，而非絕對年資保留的期待保障。 因 此，外勞的老年給付，尤其年金給付，幾乎全數沒收，除非在台定居。

解決途徑 １、內國立法，展示本國接受國際規範及保障人權之決心 ２、經由雙邊的社會協議解決

2018年的國際人力移動與社會協定國際演討會 預計７月２５、２６日於政治大學舉行德國、比利時、日、大陸、越南、菲律賓、印尼、 泰國以及本國之專家學者