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近年来社会恶意欠薪事件频传,现有劳动及行政法规均无法有效抑遏止以及保障欠薪员工薪资追讨及司法程序,刑法修正案(八)新增拒不支付劳动报酬罪,希望能就此打击恶意欠薪事件再起。然而,拒不支付劳动报酬罪将劳动及行政法中相关法规所管辖事项以刑法手段加以介入,似有挑战刑法谦抑性原则之虞,且该罪实施后,对法条内容之构成要件及相关名词于解释上尚存许多争点尚待最高人民法院厘清,本文将就支付时间、数额较大、严重后果等不确定法律概念提出个人观点,以提供最高人民法院出台司法解释时参考,最后从追讨程序、劳动应征及政府监管等三方面提出建议,避免劳动者遭致欠薪风险。
In recent years, there have been frequent reports of malicious wage incidents in the society, and existing labor and administrative laws and regulations have failed to effectively curb and guarantee wage recovery and judicial procedures for wage inequality. The amendment to the Criminal Law (8) adds new crime of refusing to pay labor remuneration and hopes to do so Fight against malicious wage incident resurgence. However, refusing to pay remuneration for labor remuneration will be subject to relevant laws and regulations of labor and administrative law to intervene by means of criminal law, it seems to challenge the principle of moderation of criminal law, and the implementation of the crime, the constitutional elements of the law and Relevant nouns in the interpretation of many remaining issues remain to be the Supreme People’s Court to clarify, this article will pay time, the amount of large, serious legal consequences such as the concept of uncertainty to provide the Supreme People’s Court for judicial interpretation of the reference, and finally from Recovery procedures, labor applications and government supervision, and so on, so as to avoid the risk of wage defaults.