(영문) 부산지방법원 2014.10.23. 선고 2014구합21425 판결

1. On May 19, 2014, the Defendant’s application for temporary retirement benefits for childcare filed against the Plaintiff and the disposition of partial site payment shall be revoked.

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

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. On November 2, 2010, the Plaintiff, who became a member of the Korea Workers’ Compensation and Welfare Service and was given birth to his/her child on November 2, 201, and the childcare leave (hereinafter “instant childcare leave”) was granted from February 1, 201 to January 14, 201 after the expiration of the period of childcare before and after childbirth (from November 2, 201 to January 31, 201). (b) At the first day of the instant childcare leave, the Plaintiff’s occupational class and salary class of the Plaintiff was class 5 to class 6 of general service.

C. The Plaintiff filed an application for childcare leave before and after the period of the instant childcare leave, and the Defendant calculated only the amount of KRW 1,449,397 out of the Plaintiff’s wage as ordinary wage, and calculated as KRW 492,79,795, excluding the remaining payment of KRW 15% of ordinary wage, pursuant to Article 95 of the Enforcement Decree of the Employment and Labor Act, 579,759, equivalent to 40% of ordinary wage, and paid KRW 500,000,000, the lower limit of the amount of the childcare leave benefits, as it did not exceed KRW 500,000,000,000 from March 25, 2011 to February 9, 2012, the Defendant paid KRW 12,100,000,000, which is the amount equivalent to the remaining amount of August 9, 2012.

A person shall be appointed.

D. On April 21, 2014, the Plaintiff filed an application with the Defendant for payment of the difference between the childcare leave benefits calculated based on the amount of bonuses, long-term continuous service allowances, meal service subsidies, transportation subsidies, and customized welfare cards, including the prescribed amount of ordinary wages, and the difference between the childcare leave benefits already paid by the Defendant to the Plaintiff. On May 19, 2014, the Defendant rejected the payment of the said difference (hereinafter “instant disposition”).

As a result of reviewing the application for the difference in childcare benefits for the return of the application for the difference in childcare benefits, it is confirmed that the payment for childcare benefits has already been completed due to his/her return, and that the period of request for review has elapsed within 90 days from the date of disposition (ordinary payment date), and that he/she shall return the application in accordance with the provision of Article 87 of the Employment Insurance Act and the guidelines for the treatment of maternity benefits due to changes in the interpretation of ordinary wages of our father (3. 12. 201

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 4, purport of the whole pleadings

2. Defendant’s defense and judgment prior to the merits

A. The defendant's assertion

Administrative litigation shall be filed within 90 days from the date when the defendant became aware of the disposition, etc., and within one year from the date of the disposition, etc. In this case, the defendant became aware of the fact on February 9, 2012, which was the date when the defendant last paid the child-care leave to the plaintiff, and the plaintiff was filed in this case with the lapse of 90 days thereafter. Thus, the lawsuit in this case is unlawful as it exceeds the period of filing the lawsuit

B. Determination

1) Where an administrative disposition or a decision on administrative appeal becomes final and conclusive due to the lapse of the appeal period, the final and conclusive effect means that a person against whom legal interest has been infringed by the disposition can no longer dispute the validity of the disposition or the decision, and does not recognize res judicata as to the judgment, and thus, the facts constituting the basis of the disposition or the legal judgment becomes final and conclusive, and the parties concerned or the court cannot make any assertion or decision inconsistent with them bound by it. Even if the previous disposition on the cancellation of childcare benefits becomes final and conclusive due to the lapse of the appeal period, the legal relationship with the purport that no medical care benefit claim is available is confirmed, and as long as the previous disposition on the cancellation of childcare benefits becomes final and conclusive due to the lapse of the appeal period, a claim for medical care benefits may be filed again, and if so rejected, a new disposition on the rejection thereof shall be instituted (see Supreme Court Decision 92Nu17181, Apr. 13, 193). Meanwhile, Article 70(2) of the Employment Insurance Act provides that a person who intends to apply for childcare leave within 12 months after the expiration date.

2) In light of the above legal principles and the relevant statutes, the plaintiff can exercise the right to receive childcare leave from one month after the date of commencement of childcare leave. Thus, at least on March 21, 201, the plaintiff's right to claim childcare leave for the period after March 21, 201 cannot be deemed to have lapsed three years, which is the remainder of the extinctive prescription period, on April 21, 2014, and the plaintiff's remaining right to claim childcare leave benefits against the defendant is deemed to exist. Therefore, the plaintiff may again claim against the defendant, and if so, the refusal disposition may still be subject to the appeal, and the period of filing the lawsuit shall also be determined based on the disposition of this case, which is a new rejection disposition, and since it is apparent in the record that the plaintiff filed the lawsuit of this case within 90 days after the plaintiff became aware of the disposition of this case, the plaintiff may dispute whether the disposition of this case is unlawful lawfully.

Therefore, the defendant's above assertion on a different premise is without merit.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff’s bonus, long-term continuous pay, meal allowance, transportation subsidy, customized welfare card, and qualification certificate allowance among the Plaintiff’s wages are wages to be paid for a certain amount of work or quality, and they constitute ordinary wages, regardless of the actual number of working days or amount to be paid periodically and uniformly. The instant disposition that rejected Plaintiff’s claim for payment of the difference by deeming that the above item is not included in ordinary wages 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 monthly amount equivalent to 40/100 of the ordinary monthly wage calculated pursuant 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 wages refer to the hourly amount of wage, daily amount of wage, weekly amount of wage, weekly amount of wage, monthly amount of wage, or contract amount, 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, the period of payment, etc. In this context, remuneration for contractual work refers to the money or goods provided to an employer and an employee for a contractual work that is ordinarily provided during the contractual work hours. The wage that an employee receives from an employer 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. Determination of the above remuneration for contractual work should be based on how the employee and an employer evaluates the value of the worker’s work ordinarily provided during the contractual work hours and determines to pay money or goods for that time. The mere fact that such money or goods have not been paid immediately after the working hours or immediately after the working hours, cannot be said to constitute remuneration for contractual work.

Specifically, a certain wage must have â€˜regularity' to belong to ordinary wages. The meaning of â€˜regularity' means that the wage is continuously paid at a certain interval; â‘ uniform payment' means not only the payment to all workers, but also the payment to all workers who meet a certain condition or standard; â‘ ‘unequality' means â€˜the nature of payment, regardless of achievements, achievements, or other additional conditions, of the work provided by the worker, naturally becomes final and conclusive (see Supreme Court en banc Decision 2012Da89399, Dec. 18, 2013).

2) Specific determination

(A) bonus;

Comprehensively taking account of the respective descriptions of evidence Nos. 3 through 5 and the purport of the whole facts and arguments in this court, the Korea Labor Welfare Corporation paid 600% of the monthly basic amount to all employees except employees subject to the annual salary system as bonus, and such bonus was paid in installments by 50% 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, reinstatement, 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 above bonus constitutes a fixed wage, which is regularly and uniformly paid wage, since it can be deemed that the payment was finalized every month if it provides a contractual work.

B) Long-term continuous service allowances;

Comprehensively taking into account each description of evidence Nos. 3 through 5 and the purport of the whole facts and arguments in this court, the Korea Labor Welfare Corporation shall pay a long-term continuous allowance according to the remuneration regulations for employees who have worked for not less than five years pursuant to attached Table 2, but the employees subject to the annual salary system have not paid a long-term continuous allowance, and according to the remuneration regulations (attached Table 2), it can be acknowledged that the employees subject to the annual salary system divided a certain group on an annual basis and made a payment of the same long-term continuous service allowance for 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 from among the employees who have worked for not less than five years, it can be deemed that the payment is finalized every month,

C) Comprehensively taking account of each description of school meal allowance Gap 3 through 5, and the purport of the entire facts and arguments in this court, the Korea Labor Welfare Corporation shall pay a certain amount of money monthly to employees on the date of payment of school meal allowance, 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 school meal allowance of KRW 100,000 per month. According to the above facts of recognition, it can be deemed that the school meal allowance is final and conclusive every month if all employees provide contractual work. Thus, it constitutes ordinary wages which are regularly and uniformly paid.

D) Comprehensively taking account of each entry into account the facts indicated in subparagraphs 3 through 5 of Article 3 and the purport of the entire arguments and significant facts in this court, the Korea Labor Welfare Corporation shall pay the employee a self-driving fee or a 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 within the Korea Labor Welfare Corporation does not pay a driver's or a transportation subsidy, and the Plaintiff is paid a transportation subsidy of KRW 100,000 per month. According to the above facts acknowledged, the transportation subsidy constitutes a fixed wage, which is a regular and uniform payment, because it can be deemed that the payment is finalized every month if it provides a contractual work to an employee who does not receive an exclusive

E) Comprehensively taking account of the descriptions in Articles 3 through 5 of the customized welfare card A and the purport of the whole facts and arguments in this court, the Korea Labor Welfare Corporation introduced a customized welfare program since 2006, and paid money and valuables paid in the previous “the day of workers’ day and anniversary of establishment, congratulatory money and valuables for life, self-development expenses, health examination expenses, etc.” The officers and employees are obliged to subscribe to group insurance with a certain point out of the allocated welfare points, and the rest 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 (598,000 won for a married person), and the amount of money paid to an unmarried person in 201 through the customized welfare program of the Korea Labor Welfare Corporation falls under the ordinary wage continuously and uniformly, and the amount of money paid to an unmarried person in accordance with the above customized welfare card constitutes a fixed amount of money to be paid to each employee and employee.

F) Comprehensively taking account of the respective descriptions of qualification certificate allowances (technical allowances) Gap 3 through 5 and the purport of this court's significant facts and arguments, the fact that a certain amount of money is paid to a person holding a qualification certificate is recognized. According to the above facts of recognition, the Korea Labor Welfare Corporation has continuously and periodically paid the above qualification certificate allowances to the executives and employees meeting certain standards, and the above amount of money is determined every month when the above qualification certificate allowances are provided for contractual work, and it constitutes a fixed wage which is regularly and uniformly paid.

3) Sub-committee

Therefore, given that bonuses, long-term continuous service allowances, meal subsidies, transportation subsidies, customized welfare cards, and qualification certificates allowances should be included in ordinary wages, the dispositions of this case rejecting the payment of childcare leave benefits by calculating the difference between the Plaintiff and the Plaintiff’s payment of childcare leave benefits based on the same premise after deducting the aforementioned wage items from ordinary wage calculation (On the other hand, the specific amount must be determined by the Defendant in consideration of the completion of the extinctive prescription period).

As to this, the Defendant alleged that the instant disposition is legitimate since the instant disposition was rendered in accordance with the Ministry of Employment and Labor’s guidelines for labor management guidance (i.e., January 23, 2014), which stipulates that the wage items of the Plaintiff’s assertion are included in ordinary wages as a matter of principle only for cases dealt with after the Supreme Court ruling related to Article 5-2 of the former Guidelines for Calculation of Ordinary Wages (Supreme Court en banc Decision 2012Da89399 Decided December 18, 2013), which does not stipulate the wage items claimed by the Plaintiff as ordinary wages, but the said guidelines are not external binding against the public, but should be determined through the organic interpretation of the relevant statutes, etc. as seen earlier. Accordingly, the Defendant’s aforementioned assertion on a different premise is rejected.

4. Conclusion

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