(영문) 부산지방법원 2014.12.26. 선고 2014구합21999 판결

1. The Defendant’s disposition to return childcare leave benefits paid to the Plaintiff on May 28, 2014 is revoked. 2. The litigation costs incurred by the Defendant are borne by the Defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. On January 9, 201, the Plaintiff became a member of the Korea Workers’ Compensation and Welfare Service and gave birth to his/her child, and thereafter, the Plaintiff was granted childcare leave from March 27, 201 to March 26, 2012 (hereinafter “instant childcare leave”).

B. At the beginning of the instant childcare leave, the Plaintiff’s occupational class and salary class were class 13 of class 5 in general service.

C. The Plaintiff filed an application for temporary retirement for childcare with the Defendant as follows. The Defendant calculated KRW 1,741,440, which is the sum of the Plaintiff’s basic salary and qualification allowances out of the Plaintiff’s wage, as ordinary wage, and paid KRW 592,080, which is the amount limited by 15% of the remaining payment out of the ordinary wage, pursuant to Article 95 of the Enforcement Decree of the Employment Insurance Act, from July 26, 201 to April 9, 2012, 592,080, which is the amount equivalent to 40% of the ordinary wage, as follows.

A person shall be appointed.

D. On May 19, 2014, the Plaintiff filed an application with the Defendant for payment of the difference between childcare leave benefits and childcare leave benefits paid to the previous Plaintiff calculated based on the ordinary wage by including bonuses, long-term continuous service allowances, meal service allowances, transport support, job class support expenses, customized welfare cards, etc. on the Defendant. The Defendant rejected the Plaintiff’s application on May 28, 2014 for the following reasons (hereinafter “instant disposition”).

According to the examination of the claim for the difference between childcare benefits and childcare benefits on March 2, 2012, when the full amount of childcare benefits for the period of childcare has been completed, and the payment of maternity benefits has been completed by the provision of Article 87 of the Employment Insurance Act and the guidelines for the treatment of maternity benefits following the interpretation and change of ordinary wages of our father ( March 12, 2014), the procedure for raising objections, such as the request for examination, etc., is applied within 90 days from the date of disposition (ordinary payment date), so it is known that the period of request for examination has elapsed.

【Fact-finding without a dispute over the ground for recognition, entries in Gap's evidence 1 through 4 (including provisional number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

A. Defendant’s defense prior to the merits

The Defendant’s guide on May 28, 2014 that the period for requesting review against the Plaintiff’s request was over cannot be deemed a disposition subject to appeal. Even if such instruction is deemed a disposition, the instant lawsuit is unlawful as it was filed after the lapse of 90 days from May 30, 2014, on which the Plaintiff received the above notice. Moreover, the Plaintiff’s claim for childcare leave ceases to exist after the lapse of three years from the expiration of the extinctive prescription period under Article 107(1) of the Employment Insurance Act, which occurred on March 27, 2011, which is the first day of childcare leave, and thus, the instant lawsuit filed on May 30, 201 is unlawful.

1) Article 70(2) of the Employment Insurance Act provides that a person who intends to receive childcare leave shall file an application within 12 months from the first month after the commencement of the childcare leave, and Article 107(1) of the same Act provides that the right to receive childcare leave benefits or to receive the refund thereof shall expire unless it is exercised within three years.

Meanwhile, Article 87(1) of the Employment Insurance Act provides that a person who has an objection to a disposition on childcare leave benefits under Chapter 5 may file a request for review with an examiner, and that person who has an objection to such decision may file a request for review with the Review Committee (Paragraph 1), and that a request for review shall be filed within 90 days from the date he/she becomes aware of the decision on the request for review, and that a request for review shall be filed within 90 days from the date he/she becomes aware of the decision on the request for review (Paragraph 2). In addition, Article 104 of the Employment Insurance Act provides that where Article 18 of the Administrative Litigation Act applies, an adjudication on a request for review shall be deemed an adjudication on an administrative appeal (Paragraph 1), and matters that are not prescribed by this Act concerning

In general, in a case where an administrative disposition or a ruling on administrative appeal becomes final and conclusive due to the lapse of the appeal period, its final and conclusive power means that a person whose legal interest is infringed upon by such disposition can no longer dispute the effect of such disposition or ruling, and further, it does not mean that res judicata such as that in a ruling is recognized, the factual or legal judgment which forms the basis of the disposition is final and conclusive, and that the parties concerned or the court cannot make arguments or judgments inconsistent therewith (see Supreme Court Decision 92Nu17181, Apr. 13, 1993).

2) In light of the above provisions and legal principles, the insured under the Employment Insurance Act, who received childcare leave benefits, may seek payment from the next defendant in addition to the benefits recognized in the disposition, even if the part was not determined because it did not request an examination or reexamination of the relevant benefits for childcare leave. Accordingly, the Defendant’s rejection constitutes “disposition on childcare leave benefits” under Article 87(1) of the Employment Insurance Act.

Therefore, the Defendant’s explanation that the period of request for review was excessive on May 28, 2014 constitutes a disposition of refusal of the Plaintiff’s request for additional payment in addition to the already paid benefits, which is subject to appeal litigation.

Meanwhile, the instant lawsuit was filed on August 28, 2014, which was from May 31, 2014 to September 90, 2014, following the date the instant disposition was issued to the Plaintiff, and barring any special circumstance, it cannot be deemed that the period of filing the lawsuit under Article 20(1) of the Administrative Litigation Act has elapsed, barring any special circumstance.

In addition, whether the Plaintiff’s right to claim payment of childcare leave benefits has expired upon expiration of the statute of limitations is not related to the legitimacy of the revocation lawsuit against the instant disposition, which is the Plaintiff’s refusal disposition against the Plaintiff’s application for childcare leave benefits. The existence of the right to claim payment of childcare leave benefits is determined abstractly by examining, in a specific case, the applicant’s recognition of such right by interpretation of the relevant laws and regulations without considering who is the applicant, and the applicant’s right to claim payment of childcare leave benefits does not mean the right to claim payment of childcare leave benefits beyond the right to claim payment of a simple response (see Supreme Court Decision 2007Du20638, Sept. 10, 200

3) Therefore, the Defendant’s main defense is without merit.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

Of the Plaintiff’s wages, bonuses, long-term continuous work allowances, meal allowance, transportation subsidy, job-level allowance, and customized welfare card are wages to be paid for the quantity or quality of contractual work, and it constitutes ordinary wages as fixed wages to be paid periodically and uniformly during the wage calculation period, regardless of the actual number of working days or the amount to be received. However, 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 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, 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 the certain conditions or standards; â‘ ‘fixedness' means the nature of â€˜regularity' which becomes final and conclusive that the payment will be made as a matter of course regardless of achievements, achievements, or other additional conditions with respect to the work provided by the worker (see Supreme Court en banc Decision 2012Da89399, Dec. 18, 2013).

2) Specific determination

A) Comprehensively taking account of the description of the certificate of evidence No. 3 and the purport of the entire facts and arguments in this court, the Korea Labor Welfare Corporation paid 600% per annum to all employees other than those subject to the annual salary system as bonus. Such bonus was paid in installments by 50% of the basic salary on the date of each payment, and the fact that the bonus was paid by calculating the number of working days in the event of new reasons such as appointment, reinstatement, temporary retirement, suspension from office, or retirement during the bonus payment period from the beginning of the month to the end of the month can be recognized. According to the above facts of recognition, the bonus constitutes a fixed wage which is regularly and uniformly paid wage, since it can be deemed that the payment has been finalized every month only when it provides contractual work.

B) Comprehensively taking into account the description of subparagraph 3 and the purport of the entire facts and arguments in this court, the Korea Labor Welfare Corporation shall pay a long-term continuous allowance to employees who have worked for not less than five years according to the remuneration rules (attached Table 2) according to the number of employees, and the fact that employees subject to the annual salary system have not paid a long-term continuous allowance, and according to the remuneration rules (attached Table 2), it can be acknowledged that a certain group is divided into a service year and paid the same long-term continuous 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 those who have worked for not less than five years, it can be deemed that the payment is finalized every month, and it constitutes a fixed wage paid regularly

C) Comprehensively taking account of the description of school meal subsidy No. 3 and the purport of the entire facts and arguments in this court, the Korea Labor Welfare Corporation shall pay a certain amount of monthly allowance to employees on the date of payment of school meal subsidy within budgetary limits. However, where 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 the school meal subsidy cost of KRW 10,000 per month. According to the above facts, if the school meal subsidy is provided to all employees, it can be deemed that the payment has become final and conclusive every month, and it constitutes a fixed wage

D) Comprehensively taking account of the entries in subparagraph 3 and the purport of the entire arguments and substantial facts in this court, the Korea Labor Welfare Corporation shall pay the employee a self-driving or transportation subsidy within the scope of its budget, and pay it on a daily basis if the period of service is less than one month. However, in the Korea Labor Welfare Corporation, the Korea Labor Welfare Corporation recognizes that the employee who provides an exclusive vehicle does not pay a driver's or a transportation subsidy, and in the case of the Plaintiff, he has received a transportation subsidy of KRW 10,000 per month. According to the above recognized facts, if the transportation subsidy provides a prescribed work to an employee who does not receive an exclusive vehicle, it can be deemed that the payment is finalized every month, and it constitutes a fixed wage which is regularly

E) Comprehensively taking account of the entries of the customized welfare card under subparagraph 3 and the purport of the entire arguments and arguments in this court, the Korea Labor Welfare Corporation introduced a customized welfare program since 2006, and paid money and valuables under the previous workers’ day, congratulatory money and valuables for anniversary of establishment of a new date, congratulatory money and valuables for life, self-development expenses, health examination expenses, etc., together with card points. Officers and employees are obliged to subscribe to group insurance among the allocated welfare points, and the remaining 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 (a married person shall be 598,000 won), and 524,000 won (a mixed person shall be 589,000 won) for an unmarried person in 201, and the amount of money paid to the employees and employees of the Korea Labor Welfare Corporation may be recognized as constituting a regular wage payment under the above regular standard.

3) Sub-committee

Therefore, given that bonuses, long-term continuous service allowances, meal service subsidies, transportation subsidies, and customized welfare cards should be included in ordinary wages, the instant disposition that rejected the Plaintiff’s claim for difference payment by calculating childcare leave benefits based on the same premise after deducting the aforementioned wage items from ordinary wages calculation is unlawful.

As to this, the defendant asserted that the ordinary wage was calculated lawfully in accordance with Article 6 of the Enforcement Decree of the Labor Standards Act as of July 26, 201 and the Guidelines for Calculation of Ordinary Wages (amended by the Rules of the Ministry of Labor No. 602 of September 25, 2009) as of July 26, 201, which is the first day of the payment of childcare leave benefits to the plaintiff, but the above guidelines are not externally binding on the people, but are merely an internal guidelines within the administration, and whether the above wage items constitute ordinary wage should be determined through the organic interpretation of the relevant Acts and subordinate statutes as mentioned above. Thus, the defendant's

4. Conclusion

If so, the plaintiff's claim is reasonable and acceptable.