2. The costs of the lawsuit are assessed against the defendant.

A. On July 2010, the Plaintiff joined the Korea Workers’ Compensation and Welfare Service and served as a class of class 4 general service 12, and on September 5, 2010, the Plaintiff gave birth to his/her child and took childcare leave from December 13, 2010 to January 10, 2013 (hereinafter “instant childcare leave”).

B. The Plaintiff applied for childcare leave benefits to the Defendant, and the Defendant paid childcare leave benefits calculated pursuant to Article 95 of the Enforcement Decree of the Employment Insurance Act on the premise that KRW 1,855,160 corresponding to the basic salary out of the Plaintiff’s wage is the monthly ordinary wage as follows.

A person shall be appointed.

C. On January 3, 2014, the Plaintiff filed an application with the Defendant for payment of the difference between the childcare leave benefits already paid to the Plaintiff and the childcare leave benefits already paid by the Defendant, by including the prescribed amount in ordinary wages among bonuses, long-term service allowances, meal service subsidies, transportation subsidies, and customized welfare cards. On February 6, 2014, the Defendant rendered a disposition rejecting the said application on the ground that the total amount of childcare leave benefits was already paid (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 1 to 4 (including cases where there are serial numbers), the purport of the whole pleadings

2. Determination on the defense prior to the merits

A. The defendant's main defense

Administrative litigation shall be filed within 90 days from the date of becoming aware of the disposition, etc., and within one year from the date of the disposition, etc., the plaintiff filed the lawsuit in this case after the lapse of 90 days from December 19, 201, which is the date of the final disposition of childcare leave benefits. Thus, the lawsuit in this case is unlawful because the period for filing the lawsuit in this case has expired.

B. Determination

1) In general, in a case where an administrative disposition or an adjudication on administrative appeal becomes final and conclusive after the lapse of the appeal period, its final and conclusive power means that the person against whom the legal interest has been infringed can no longer dispute the effect of the disposition or the adjudication, and further, it does not recognize res judicata such as the judgment, and thus, factual or legal judgment which forms the basis of the disposition has become final and conclusive, and neither the parties nor the court may make any assertion or judgment inconsistent therewith (see, e.g., Supreme Court Decisions 92Nu17181, Apr. 13, 1993; 2002Du11288, Jul. 8, 2004).

2) Article 70(2) of the former Employment Insurance Act (amended by Act No. 12323, Jan. 21, 2014; hereinafter “Employment Insurance Act”) provides that a person who intends to receive childcare leave benefits shall file an application within 12 months from the first month after the date childcare leave begins, and Article 107 of the Employment Insurance Act provides that a person who intends to receive childcare leave benefits or the right to return childcare leave benefits terminates if he/she exercises the right to do so for three years. As such, a person who intends to receive childcare leave benefits may again file a claim with the Defendant for childcare leave benefits on the premise that the extinctive prescription has not been expired, and the rejection disposition may still be subject to an appeal litigation, and the period of filing a lawsuit shall be determined based on the new rejection disposition.

However, the Plaintiff did not dispute the claim for partial payment of childcare leave benefits in the past, but rather the Defendant’s refusal of a new claim for payment made on January 3, 2014 before the lapse of 12 months after the date of termination of childcare leave, i.e., the instant disposition, as the subject matter of an appeal litigation, and is obvious in the record that the instant lawsuit was filed within 90 days after the date of becoming aware of the instant disposition. Thus, the Defendant’s objection to the purport that the instant lawsuit is unlawful because the period for filing the lawsuit has expired as of the last payment date in the past.

3. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

The points of bonuses, long-term continuous pay, meal allowance, transportation subsidy, and customized welfare card out of the Plaintiff’s wage constitute ordinary wages as fixed wage to be paid periodically and uniformly during the period of wage calculation. Therefore, the Defendant is obligated to pay the difference between the fixed amount of childcare leave benefits including these items in ordinary wages and the childcare leave benefits already received by the Plaintiff. Therefore, the instant disposition that rejected such payment is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Standard for determining ordinary wages

According to Article 95(1) of the Enforcement Decree of the Employment Insurance Act, childcare leave benefits under Article 70(3) of the Employment Insurance Act refer to the amount equivalent to 40/100 of the monthly ordinary wage calculated according to the Labor Standards Act as of the first day of childcare leave. Article 6(1) of the Enforcement Decree of the Labor Standards Act provides that ordinary wage refers to hourly wage, daily wage, weekly wage, weekly wage, monthly wage, or contract wage, which shall be paid for contractual or total labor regularly and uniformly.

Whether a certain wage constitutes ordinary wage shall be determined depending on the objective nature of the wage, which is the money or goods paid to a worker for a contractual work, and shall not be determined by formal standards, such as the name of the wage or the end of the period of payment. Here, the remuneration for contractual work refers to the money or goods prescribed to be paid by an employer and an employee with respect to the work ordinarily provided during the contractual work hours. The wage paid by an employee for a work other than those provided during the contractual work hours or provided under a labor contract cannot be deemed as the remuneration for a contractual work, and thus does not constitute ordinary wage, since the wage paid by an employee and an employer for a work other than those provided during the contractual work hours cannot be deemed as the remuneration for a contractual work. The above determination of the remuneration for contractual work ought to be based on how the employee and an employer evaluated the value of the work ordinarily provided during the contractual work hours and determined to pay money or goods for that time. Since such money or goods have not been paid immediately after the working hours or immediately after the working hours, it cannot be said that it does not constitute a remuneration for contractual work.

Specifically, that a certain wage should be "regular" means that a wage is continuously paid at regular intervals, and ② a uniform payment means not only the payment to all workers, but also the payment to all workers who meet certain conditions or standards, and ③ "unfixedness" means "a nature, regardless of achievements, achievements, or other additional conditions, of which payment is confirmed as a matter of course for work provided by an employee" (see Supreme Court en banc Decision 2012Da89399, Dec. 18, 2013).

2) Specific determination

(A) bonus;

In full view of the purport of each statement in Gap evidence 2 and 5, the Korea Labor Welfare Corporation paid 600% of the monthly basic amount to all employees other than those subject to the application of the annual salary system as bonus. Such bonus was paid by dividing 50% of the basic amount on the date of each payment, and the fact that the payment was made by calculating the number of working days in the event of new appointment, return, temporary retirement, suspension from office, retirement, etc. during the period of payment subject to bonus from the beginning of the month to the end of the month can be recognized. According to the above facts of recognition, the bonus can be deemed to have been determined every month, and it constitutes a fixed wage which is regularly and uniformly paid.

B) Long-term continuous service allowances;

In full view of the purport of each statement in Gap evidence 2 and 5, the Korea Workers' Compensation and Welfare Service shall pay the long-term continuous service allowance prescribed in [Attachment Table 2] according to the number of employees who have worked for not less than five years, and it can be recognized that employees subject to the annual salary system have not paid the long-term continuous service allowance, and according to the remuneration rules [Attachment Table 2], a certain group is divided into a service year and paid the same long-term service allowance to each group. According to the above facts of recognition, if a long-term continuous service allowance is provided to employees other than those subject to the annual salary system among the employees who have worked for not less than five years, it can be deemed that the payment has become final and conclusive every month, and it constitutes a fixed wage

C) Comprehensively taking into account the overall purport of arguments, evidence Nos. 3 and 5 of meal service allowance A, the Korea Labor Welfare Corporation shall pay a certain amount monthly amount to employees on the payment date of remuneration within budgetary limits, but if the period of service is less than one month, it shall be calculated on a daily basis, and in the case of the Plaintiff, it may be recognized that the Plaintiff received meal service allowance of KRW 100,000 per month. According to the above facts, it can be deemed that the payment of meal service allowance is confirmed every month, and it constitutes ordinary wages, which are fixed wages regularly and uniformly paid once a month, if all employees provide labor

D) Comprehensively taking account of the purport of the entire arguments as to the evidence Nos. 3 and 5 of the transportation subsidy, the Korea Labor Welfare Corporation shall pay the employee a self-driving or transportation subsidy within the scope of the budget, and pay it on a daily basis if the period of service is less than one month. However, if an employee who provides an exclusive vehicle at the Korea Labor Welfare Corporation does not pay a driver's automobile maintenance or transportation subsidy, and the Plaintiff is paid a transportation subsidy of KRW 10,000 per month. According to the above facts acknowledged, if an employee who does not receive an exclusive vehicle provides a contractual work, it can be deemed that the payment has become final every month, and it constitutes a fixed wage which is a regular and uniform payment.

E) Comprehensively taking account of the overall purport of arguments as to the entry of customized welfare card No. 3, the Korea Labor Welfare Corporation introduced a customized welfare program from around 2006, paid money and other valuables paid under the previous workers’ day, congratulatory money and valuables for anniversary of establishment, congratulatory money and valuables for life, self-development expenses, health examination expenses, etc. among the allocated welfare points in the form of card points. Officers and employees are obliged to subscribe to group insurance with a certain point out of the allocated welfare points, and the remainder points may be paid by applying for the deduction of welfare points by directly using the welfare card or using the welfare card. The amount of money paid through the customized welfare program of the Korea Labor Welfare Corporation is 53,000 won (the married person) and the amount of money paid through the customized welfare program of the Korea Labor Welfare Corporation (the married person shall be 598,000 won) and 524,000 won (the married person shall be 589,000 won) each year, which corresponds to the fixed amount of wages.

3) Sub-committee

Therefore, the points of bonuses, long-term continuous service allowances, meal subsidies, transportation subsidies, and customized welfare cards shall be included in ordinary wages. The disposition of this case based on the premise that the Defendant paid all childcare leave benefits by deeming only the basic salary, excluding each of the above items as ordinary wages, and paying all of the childcare leave benefits calculated based on the calculation of ordinary wages, is unlawful.

4. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.

Judges Han-hane

Judges Kim Gin-American

A person shall be appointed.

A person shall be appointed.