(영문) 서울고등법원 2015.7.9. 선고 2015누31529 판결

On February 6, 2014, the defendant's disposition to return the difference payment application for childcare leave filed against the plaintiff on February 6, 2014.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's lawsuit is primarily dismissed, and the plaintiff's claim is dismissed in preliminary.

Reasons

1. Quotation of the first instance judgment

The reasons for the court's explanation concerning this case are as follows: "from December 13, 2010 to January 10, 2013" in Part II, Part II, Part V, "from December 13, 2010 to December 12, 2011," and "The disposition in this case is unlawful" in Part IX, Part II, of the judgment of the court of first instance, and "(the point of this case's current welfare card does not correspond to ordinary wages under the Labor Standards Act, even if the points of this case's current welfare card do not correspond to ordinary wages under the Labor Standards Act, so long-term service allowance, long-term service allowance, meal allowance, transportation subsidy, and transportation subsidy are equal to ordinary wages under the Labor Standards Act; the plaintiff's claim for the remainder after deducting the amount of childcare childcare benefits already paid by the defendant from ordinary wages under the main sentence of Article 2, the disposition in this case's additional amount of childcare benefits should not be revoked by the defendant's determination of the remaining amount of childcare childcare benefits calculated based on the defendant's's ordinary wages.

2. Additional determination

A. The defendant's assertion

1) According to Article 70 of the Employment Insurance Act and Article 116(1) of the Enforcement Rule of the same Act, an application for temporary retirement for childcare should be made by preparing the required documents, such as the document verifying the written confirmation of temporary retirement for childcare, ordinary wages, etc., and the copy of the document verifying the receipt of money and valuables from an employer during the period of temporary retirement for childcare. However, on January 3, 2014, the Plaintiff did not provide the above required documents while filing an application for temporary retirement for childcare with the Defendant, and thus, the instant disposition rejecting the said application by the Plaintiff is lawful.

2) According to Article 70(2) of the Employment Insurance Act, a person who intends to receive childcare leave shall file an application for childcare leave within 12 months from the first month after the commencement of childcare leave. Since the Plaintiff’s period of childcare leave from December 13, 2010 to December 12, 2011, the date on which the Plaintiff may apply for childcare leave is until December 12, 2012. However, since the Plaintiff filed an application for childcare leave after January 3, 2014, the instant disposition rejecting the said application by the Plaintiff is lawful.

B. Determination

1) Determination on the first argument

In an appeal litigation seeking the revocation of an administrative disposition, a disposition agency may add or alter other grounds only to the extent that the grounds for the initial disposition are deemed identical to the basic facts (see Supreme Court Decision 2013Du26118, May 16, 2014). Since the original grounds for the disposition of this case, which the Defendant incurred, have already been paid the full amount of childcare leave for the Plaintiff’s period of childcare leave, the Defendant’s assertion that the aforementioned documents are incomplete is not included in the grounds for disposition of this case, but cannot be deemed identical to the original grounds for disposition of this case.

Even if not, according to Article 17(5) of the Administrative Procedures Act, Article 13 of the Civil Petitions Treatment Act, and Article 14 of the Enforcement Decree of the same Act, where there are defects, such as defects in the documents required for application, administrative agencies shall, without delay, request the applicant to supplement the documents within a reasonable period, and shall not immediately refuse the application without any justifiable reason. Although the defects in the documents asserted by the defendant constitute defects that can be supplemented, there is no evidence to support the fact that the defendant requested the applicant to supplement the documents. Thus, the defendant's assertion that the disposition of this case, which rejected the plaintiff's application on January 3, 2014, was legitimate is without merit.

2) Determination on the second argument

In light of the above legal principles, the defendant's above application period and argument were not included in the original reason for disposition of this case, and since the original reason for disposition and basic factual relations cannot be deemed identical, the defendant is not allowed to add the application period and reason as the reason for disposition.

Even if not, Article 107(1) of the Employment Insurance Act provides that the right to receive childcare benefits shall expire if it is not exercised for three years, and Article 107(2) of the Employment Insurance Act provides that the above extinctive prescription shall be interrupted by an application for childcare benefits. Thus, an application for childcare benefits may be filed before three years elapse from the last day of the childcare leave. On the other hand, Article 70(12) of the Employment Insurance Act, which provides that an application for childcare benefits shall be filed within 12 months from the first day of the childcare leave after the first day of the childcare leave, is merely a decoration provision.

On January 3, 2014, before the expiration of three years from September 13, 201, which was the final date of childcare leave, the Plaintiff filed an application for the instant childcare leave. Therefore, the instant application for childcare leave is lawful (the Defendant paid KRW 1,267,380 to the Plaintiff for the additional childcare leave on September 27, 201, which was the last date of childcare leave on September 27, 2013).

Therefore, we cannot accept this part of the defendant's argument.

3. Conclusion

Therefore, the plaintiff's claim is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed. It is so decided as per Disposition.