In a case where Gap applied for a temporary retirement for childcare for about 20 days for the same child at intervals of about 20 days after using the same child in one installment, and the head of the local employment and labor office decided a site for temporary retirement for childcare on the ground that he did not receive the temporary retirement for at least 30 days, the case holding that the above disposition is unlawful, on the ground that the worker whose total period of temporary retirement for childcare is at least 30 days has not been granted for at least 30 consecutive days, even if he did not receive the temporary retirement for childcare.

A used a total of 30 days of childcare leave at intervals of about 20 days for the same child, and applied for childcare leave once, but the case was determined on the ground that the head of the local employment and labor office did not receive childcare leave for at least 30 days.

In full view of the legislative intent and purpose of the childcare leave system, the history of its enactment and amendment, the relationship with other Acts, and the nature of the childcare leave, etc., it is reasonable to deem that the childcare leave system can be applied for even if a worker who has been granted childcare leave for at least 30 days continues to receive childcare leave for at least 30 days, on the ground that the childcare leave system’s text and text of Article 70(1) of the former Employment Insurance Act (amended by Act No. 1657, Aug. 27, 2019; hereinafter the same shall apply) does not require that the childcare leave be granted for at least 30 days. Thus, the case held that the above childcare leave system’s application for childcare leave is unlawful on the grounds that each of the childcare leave is used for the purpose of raising the child under childcare care and medical treatment of the above child, and that compensating for income decreased by childcare leave for the child under childcare leave system is unlawful in light of the purport of Article 70(2) of the former Employment Insurance Act’s application period.

Articles 32(4) and 36(2) of the Constitution of the Republic of Korea; Article 5-2(1)3 (see current Article 70(2)) of the former Employment Insurance Act (Amended by Act No. 6850, Dec. 30, 2002); Articles 70(2) and 73-2 of the former Employment Insurance Act (Amended by Act No. 11274, Feb. 1, 2012); Articles 6, 70(1) and (2) of the former Employment Insurance Act (Amended by Act No. 1657, Aug. 27, 2019); Article 19-4 of the former Employment Insurance Act (Amended by Act No. 9795, Oct. 9, 200); Article 5-2(1)3 (see current Article 70(2)); Article 70(2) and 73-2 of the former Employment Insurance Act (Amended by Act No. 1651, Jan. 16, 20197>

Plaintiff (Law Firm Han, Attorneys Kim Young-chul et al., Counsel for plaintiff-appellant)

The President of the Gwangju Regional Labor Agency

Gwangju District Court Decision 2019Guhap11774 Decided September 26, 2019

March 26, 2020

1. Revocation of the first instance judgment.

2. On April 30, 2019, the Defendant’s decision on the payment of a site for childcare benefits rendered to the Plaintiff shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff used childcare leave for 28 days from February 18, 2019 to March 17, 2019 for the same child while working at the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, and for two days from April 9, 201 to April 10, 2019.

B. On April 26, 2019, the Plaintiff filed an application with the Defendant for childcare leave, and on April 30, 2019, the Defendant rendered a decision not to pay childcare leave to the Plaintiff on the ground that the Plaintiff was not granted childcare leave for at least 30 days (hereinafter “instant refusal disposition”).

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 3, Eul evidence 1 and 2, the purport of the whole pleadings

2. Whether the rejection disposition of this case is legitimate

A. Summary of the plaintiff's assertion

Article 70(1) of the former Employment Insurance Act (amended by Act No. 1657, Aug. 27, 2019; hereinafter “Employment Insurance Act”) does not require the payment of childcare leave for at least 30 days. Under Article 19-4 subparag. 3 of the former Equal Employment Opportunity and Work-Family Balance Assistance Act (amended by Act No. 1658, Aug. 27, 2019; hereinafter “Equal Employment Opportunity Act”), childcare leave is allowed to be used in one installment. In full view of the content and purpose of the aforementioned provision, the legislative purport and purpose of the childcare leave system, the constitutional value of maternity protection, and the legal system, etc., the Plaintiff may file a claim for childcare leave if 30 days’ total childcare leave was granted, and thus, the Plaintiff did not receive childcare leave for at least 30 days on the ground that the Plaintiff was granted childcare leave for at least 30 days under Article 70(1) of the Employment Insurance Act.

B. Relevant statutes

[Attachment] The entry in the relevant statutes is as follows.

C. Determination

1) Relevant legal principles

As a matter of principle, since the law is a universal norm with the same binding force against many and unspecified persons, it shall be interpreted in such a way as to clarify the standard meaning of the law and to ensure objective feasibility, and it shall be ensured that legal stability is not undermined by maintaining consistency acceptable to the greatest extent possible. Meanwhile, since the positive law is established in mind with universal and typical matters, it is also required to interpret and apply so that it can be the most reasonable resolution meeting specific cases in various cases that occur in society reality. In short, the purpose of statutory interpretation must be to find concrete feasibility within the extent that does not undermine legal stability. Furthermore, in principle, the interpretation must be faithfully interpreted within the ordinary meaning of the language and text used in the law, as far as possible, in principle, in light of the legislative intent and purpose of the law, history of enactment and amendment, harmony with the overall legal order, and the relationship with other Acts and subordinate statutes, a reasonable interpretation meeting the request for statutory interpretation (see, e.g., Supreme Court en banc Decision 1211Da1391, Jun. 21, 2018).

2) Whether the childcare leave has been granted for at least 30 consecutive days to apply for childcare leave

A) Article 70(1) of the Employment Insurance Act provides that the Minister of Employment and Labor shall pay childcare leave under Article 19 of the Equal Employment Opportunity Act to a person who satisfies certain requirements among the insured workers granted 30 days (excluding the period overlapping with the period of maternity leave under Article 74 of the Labor Standards Act) or more (excluding the period overlapping with the period of maternity leave under Article 74 of the Labor Standards Act). In addition, Article 19(1) of the Equal Employment Opportunity Act provides that where a worker files an application for temporary retirement to raise his/her children (including adopted children) younger than 8 years old or in the second grade or lower of elementary school, the employer shall allow such application, and where a worker intends to take childcare leave under the main sentence of Article 19-4 and subparagraph 3 of the same Article, he/she may choose the method of partial use of childcare leave (only once).

B) Such a childcare leave system has its constitutional basis under Article 32(4) of the Constitution that provides for special protection for female labor, and Article 36(2) of the Constitution that provides for the State’s duty of protecting maternity. However, at present, it can be said that the childcare leave system was established for the purpose of promoting the welfare of workers by preserving their income during the period of childcare leave and promoting the use of the childcare leave system, rather than for the original purpose of protecting maternity and developing the vocational ability of working women. In addition, it can be said that the childcare leave system was established for the purpose of promoting women’s participation in the labor market through support for raising their children, promoting their work and family balance, encouraging childbirth and enhancing their welfare, sharing male’s family responsibility and achieving substantial equality in fostering their families (see Constitutional Court en banc Decision 2005Hun-Ma156, Oct. 30, 2008).

C) Infant-care leave benefits can be paid out of the account that pays unemployment benefits among the Employment Insurance Fund, and the funds of this account shall be based on the insurance premium paid by the employer and the employee [Article 6 of the Employment Insurance Act, Article 13 of the Act on the Collection of Insurance Premiums, etc. for Employment Insurance and Industrial Accident Compensation Insurance (amended by Act No. 16268, Jan. 15, 2019)], and Article 70(1)1 of the Employment Insurance Act provides that the insured unit period under Article 41 of the Employment Insurance Act shall be at least 180 days in total prior to the commencement date of the child-care leave on the condition that the insured unit period under Article 41 of the same Act shall be at least 180 days in total. In addition, the entitlement to the child-care leave benefits shall be attributed to the beneficiary so that it can be used for personal interest (private utility), as well as contribute

D) Meanwhile, Article of the Employment Insurance Act on childcare leave was newly established on August 14, 2001. Since the establishment of the Employment Insurance Act, “insured who has been granted childcare leave for 30 days or more” was required as the requirement. However, even after examining legislative data, it is difficult to verify the exact reasons for the condition that childcare leave was granted for 30 days or more.

Article 55-2 of the former Employment Insurance Act (amended by Act No. 8781, Dec. 21, 2007); Article 55-2 of the same Act (amended by Act No. 6509, Aug. 14, 2001) provides that the childcare leave provision cannot be used in installments at the time of August 14, 2001, where the provision on childcare leave was newly established, the period of application shall be extended to 12 months or less from the expiration date of childcare leave [the period of application shall be extended to 30 months or more from the expiration date of childcare leave, and the period of application shall be extended to 10 months or more from the expiration date of childcare leave (the amended by Act No. 10895, Jul. 21, 201). It is unreasonable to interpret the provision on reduction of income from reduction of working hours due to reduction of working hours [the period of childcare leave shall be extended to 30 days or more from the expiration date of childcare leave, etc.].

E) Therefore, in light of the legislative intent and purpose of the aforementioned system for childcare leave, history of enactment and amendment, relationship with other Acts, and character of childcare leave, etc., inasmuch as the language and text of Article 70(1) of the Employment Insurance Act does not require that childcare leave be granted for at least 30 days, it is reasonable to deem that an employee who has been granted childcare leave for at least 30 days in total may file an application for childcare leave even if he/she is not granted childcare leave for at least 30 consecutive days.

3) Specific determination

In full view of the following circumstances, in light of the evidence No. 4 and No. 1 and No. 4 of the evidence No. 1 and the purport of the entire pleadings, the Plaintiff constitutes an insured person who has been granted childcare leave for at least 30 days and may file a claim for childcare leave with the Defendant. Therefore, the instant refusal disposition rejecting the Plaintiff’s application for childcare leave on the ground that the Plaintiff was not granted childcare leave for at least 30 consecutive days is unlawful.

① The Plaintiff used childcare leave for the same child from February 18, 2019 to March 17, 2019, and 30 days in total from April 9, 2019 to April 10, 2019. Meanwhile, the Plaintiff’s child was hospitalized in the Magsan Hospital from February 13, 2019 to March 15, 2019, and was hospitalized in the same hospital on April 10, 2019. The Plaintiff’s child care leave appears to have been used for the purpose of bringing up the child as a petition for childcare leave. Thus, the Plaintiff’s child was used for the purpose of being hospitalized.

② The purpose of the childcare leave system was to preserve the income during the period of the childcare leave and to promote the welfare of the worker. As such, if the income of the worker has decreased due to the childcare leave, it would be consistent with the legislative intent of preserving the decreased income regardless of the fact that the worker’s assets are high and low. In the Plaintiff’s case, the ordinary wage in 2019 was KRW 5 million per month and KRW 5,100,000 per month, and KRW 5,380,000 per month, and the actual income in January and February was KRW 5,100, KRW 300,000 per month, in the case of three months during which the childcare leave was used, and thus, the actual income amount was significantly decreased. As such, the reduction of income is due to the childcare leave, and thus, it seems that the Plaintiff’s compensat

(3) If it is deemed that a claim for childcare leave may be filed in cases where the total period of divided childcare leave is at least 30 days, the childcare leave may be paid on an extreme basis, even if the child has been used by dividing the childcare leave by 15 days at the age of 0 and 8. However, unlike the above cases, the Plaintiff used childcare leave at intervals of about 20 days, and the premise is different from the above cases. Therefore, the Plaintiff’s claim for childcare leave should not be rejected in the case where childcare leave is used in installments within a relatively short period of time, such as the Plaintiff, even in cases where childcare leave is used in installments within a relatively short period of time (only like the above cases, it is reasonable to resolve the problems, such as failure to pay childcare leave or the legislation on the extinctive prescription of the period of childcare leave by applying the provision on the period of childcare leave, or setting up the requirements for payment of childcare leave at intervals of time, etc.).

④ Article 70(2) of the Employment Insurance Act provides that an application for childcare leave shall be filed within 12 months from the first month after the commencement date of the childcare leave, barring any special circumstance. In a case where an application for childcare leave for one’s children is deemed to have to be paid only when 30 days have elapsed since the completion date of the childcare leave, it may be interpreted that the period of application for childcare leave should be divided for the previous period of childcare leave, and that the sum of the period of application for childcare leave should be paid at the time of application for childcare leave after the division of the period of application for childcare leave. However, in this case, even if the period of application for childcare leave is calculated from the expiration date of the previous childcare leave, the Plaintiff’s application for childcare leave cannot be deemed to contravene the purport of the provision of the application for childcare

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted on the grounds of its reasoning, and the judgment of the court of first instance differs from this conclusion, and it is revoked and accepted the plaintiff's claim of this case.

[Attachment] Relevant Statutes: omitted

Judges Choi Jin-hee (Presiding Judge)