「合意終止」契約，指契約當事人對於已經成立生效的法律關係，因終止之合意而使契約不溯及的消滅。通常契約經合意終止後，當事人間即不互相負擔任何義務，因之所產生的法律上爭議亦不多見。然而，勞動契約之終止，則因契約之種類(定期、不定期)、契約終止之事由而衍生出勞動者有無權利要求資遣費、退休金、預告期間工資等後續問題。因此，在判斷勞動契約是否真正因合意而終止時有必要格外謹慎，尤其是當雇主有明顯違反法令、勞動契約的情事時，實不宜任意為合意終止的認定。勞資間的「權力關係」並不均衡，即使在勞動契約終止後勞動者尚需憑藉雇主發給之離職證明書以另謀他職，所以依離職申請書上所述理由及雇主之簽名同意而驟然為合意終止之認定，難謂為合理的判斷。 勞動者應依雇主之指示提供勞務，此固然為勞動契約「人格上從屬性」的表現，唯勞動者的服從義務並非沒有限制，必須探究訂約時當事人的意思以決定契約的內容與服從的範圍，因此雇主調動勞工職位或工作地點之命令的合法性有待商榷。內政部函示之「雇主調動勞工工作之五項原則」，將「不得違反勞動契約」只當作判斷雇主調動勞工職務、工作地點是否合理的標準之一，而非絕對的唯一標準。換言之等於是容許雇主片面變更勞動契約的內容，此種作法不僅有違勞動法令保護勞動者的旨意，亦與勞動契約強調契約當事人之權利義務，以訂約時當事人之合意內容為憑據之基礎原則，未盡符合。 一般雙務契約有同時履行抗辯權行使的問題。勞動契約為繼續性的雙務契約，雇主有積欠工資的情事，勞工應可主張同時履行抗辯權拒絕繼續為勞務給付，但是對於已到期的工資，雇主是否能夠主張同時履行抗辯權則不無疑問。本文嘗試以勞務給付與工資給付在時間上的關聯，說明雇主對於勞工之工資給付請求權應無主張同時履行抗辯權之可能。 「拒絕給付」與「遲延給付」之關係如何在學理上頗多爭議，雖然最新修正之民法第二百二十七條已無「不為給付」一詞，但是是否該學理上的爭議能因為法律的修正而化為無形，則仍然有待觀察。高等法院在本案中認為雇主未為工資給付充其量只構成遲延給付，因此有必要說「拒絕給付」與「遲延給付」的意義、構成要件加以探討，以明瞭本案承審法官對事實之認定與法律之適用有無缺失。本文認為高等法院誤將勞動基準法第十四條第一項第五款之「雇主不依勞動契約給付工作報酬」侷限於「拒絕給付」之情形，復又對已相當具體的「拒絕給付」事實，課受僱人以不明確的舉證責任，其預設立場的態度難以令人認同。

The term 'termination of contract by agreement' means parties to a contract agree to end their contractual relations with no retrospective effect. Generally, once a contract is terminated through an agreement, parties to the contract no longer bear any obligation to each other, and therefore few disputes occur afterwards. However, in the contract of employment, the kinds of contracts, i.e. with or without fixed tenure, and the reason(s) behind termination affect an employee's right to claim redundancy payment, pension, and wages in lieu of notice. It is therefore necessary to be extremely cautious in judging whether an employment contract is terminated by agreement or not. This is particularly so when an employer had breached his contractual duties before the 'agreed' termination. Socially and financially, the employers are in a stronger position than their employees. An ex-employee might need a reference from his/her ex-employer to find another job. Therefore, in making a judgment on whether an employment contract is terminated by agreement, it is hardly reasonable for the court to rely solely on the reason(s) shown in the resignation letter or simply because it has the employer's consent. One of the important characters of the contract of employment is that an employee owes the duty of obedience to his/her employer. Nevertheless, his/her duty of obedience is not absolute. The extent of such a duty depends on both parties' intention when the contract was made. The legitimacy of an employer's order to change his/her employee's position in an establishment or place of work is far from certain. The Home Office's 'Five Principles on the Change of Work' makes "not in breach of an employment contract" as one of the principles in considering the legitimacy of such an order instead of the one, and only one consideration. In other words, it permits an employer to change the terms and conditions of an employment contract unilaterally. Not only does such an approach of dealing with the issue of changing job or place of work against Labour Law's purpose of protecting workers, it is also against an elementary principle of the Law of Contract---the requirement of mutual consent at the time of contract Normally the question of recoupment exists in reciprocal contracts. Contracts of employment have a continuity element and are reciprocal ones. When an employer fails to pay wages in accordance with employment contracts, his/her employees can claim recoupment as a means of refusal to work. However, it is doubtful whether or not an employer has the right to claim recoupment. This essay tries to use the connection in time between the provision of work and the payment of wages to explain that it is unlikely for an employer to claim recoupment successfully when he/ she faces a wages claim. The differences between refusal to pay and delayed payment cause some theoretical controversies. Even Article 227 of the Civil Law no longer has the term 'without making payment', it remains to be seen whether or not those long-existing arguments will diminish as a result of the last amendment in law. In this case, the Court of Appeal concluded that the employer's failure to pay had only constituted delayed payment It is therefore necessary to make a brief discussion on the meanings and definitions of refusal to pay and delayed payment in order to see if the Court of Appeal has made any mistake in its facts finding and legal application. This essay argues that the Court of Appeal mistakenly restricted the application of the term 'employers fail to pay wages in accordance with employment contracts' of Article 14 (I)(v) of the Basic Labour Standards Act to 'refusal to pay', and wrongly requested the employee to provide extra evidence on unequivocal and undisputed facts. This essay makes it clear that the Court of Appeal's decision in this case is both wrong and regrettable.