(영문) 수원지방법원 2015.2.11. 선고 2014구합53439 판결

A. On July 15, 2010, the Plaintiff, who became a member of the Korea Workers’ Compensation and Welfare Service, gave birth to his/her child and took childcare leave from September 14, 201 to September 13, 201 (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 1,506,460 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”).

[Reasons for Recognition] Uncontentious Facts, Gap evidence Nos. 1, 4, 5, Eul evidence Nos. 1 and 2, the whole pleadings, and the judgment as to the defense prior to the merits

A. Defendant’s defense prior to the merits

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 October 5, 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

In general, where an administrative disposition or a ruling on administrative appeal becomes final and conclusive after the lapse of the appeal period, its final and conclusive power means that a person whose legal interest has been infringed upon cannot always dispute the effect of the relevant disposition or ruling, and furthermore, the res judicata such as the ruling is not recognized. As such, facts or legal judgments based on the relevant disposition have become final and conclusive, and neither parties nor the court may make any allegation or judgment inconsistent with them (see, e.g., Supreme Court Decisions 92Nu17181, Apr. 13, 1993; 2002Du11288, Jul. 8, 199).

Article 70(2) of the former Employment Insurance Act (amended by Act No. 12323, Jan. 21, 2014; hereinafter referred to as the "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 the person who intends to receive childcare leave benefits or the right to return childcare leave benefits ceases to have extinctive prescription unless he/she exercises the right for three years. Thus, a person who intends to receive childcare leave benefits may file a claim for childcare leave benefits again with the defendant on the premise that the extinctive prescription has not expired. If such refusal is rejected, the rejection disposition may still be subject to an appeal litigation, and the period of filing a lawsuit shall

However, the Plaintiff did not dispute part of the claim for payment of childcare leave benefits in the past, but rather the Defendant’s refusal to claim the new payment of childcare leave benefits on January 3, 2014, that is, the instant disposition as the subject of an appeal litigation, is apparent in the record that the instant lawsuit was filed within 90 days from the date on which the disposition of this case was known. As such, the Defendant’s principal safety defense to the effect that the instant lawsuit is unlawful because the period for filing the lawsuit has expired as of the last payment date in the past, and the instant lawsuit is unlawful is without merit (as a result of the foregoing recognition, the last payment date of childcare leave benefits to the Plaintiff is not October 5, 201, but October 18, 2013).

3. Whether the instant disposition is lawful

A. 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, in order for a certain wage to be included in ordinary wages, ① ‘regularness' means that the wage is continuously paid at a certain interval, ② ‘ uniform payment’ means not only the payment to all workers, but also the payment to all workers who meet certain conditions or standards, ③ ‘fixedness' means ‘the nature of payment, regardless of achievements, performance, or other additional conditions, naturally becomes final and conclusive for the work provided by the worker (see Supreme Court en banc Decision 2012Da89399, Dec. 18, 2013).

2) Specific determination

(A) bonus;

In full view of the purport of the argument in Gap evidence No. 2, the Korea Labor Welfare Corporation paid 600% per annum to all employees other than those subject to the annual salary system as bonus, and such bonus was paid by dividing 50% by 50% on the date of each payment, and the fact that the new appointment, reinstatement, temporary retirement, suspension, retirement, etc. during the period of payment subject to bonus from the beginning of the month to the end of the month is paid by calculating the number of working days. According to the above facts of recognition, the above bonus can be deemed to have become final and conclusive every month, and it constitutes a fixed wage, which is a regular and uniform payment.

B) Long-term continuous service allowances;

In full view of the purport of the argument in Gap evidence No. 2, 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 employed for not less than five years, and the fact that employees subject to the annual salary system have not been paid long-term continuous service allowance, and according to the remuneration rules [Attachment 2], it can be acknowledged that the employees are divided into a certain group by 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 employees employed for not less than five years, it can be deemed that the payment has become final every month, and it constitutes a fixed wage which

C) Comprehensively taking account of the purport of the statement in evidence No. 3 of meal service allowance A, the Korea Labor Welfare Corporation shall pay a certain amount of money every month to employees on the payment date of remuneration within the scope of the budget. However, in case where the working period is less than one month, it shall be calculated on a daily basis, and in the case of the plaintiff, the fact that the plaintiff received the meal service allowance of KRW 10,000 per month. According to the above facts of recognition, it can be deemed that the payment of meal service allowance is finalized every month, and it constitutes a fixed wage which is regularly and uniformly paid.

D) Comprehensively taking into account the purport of evidence No. 3 as to traffic assistance costs, the Korea Labor Welfare Corporation shall pay the employee a self-driving fee or a traffic assistance fee within the scope of the budget, and if the working period is less than one month, it shall be paid on a daily basis. However, if an employee who provides an exclusive vehicle at the Korea Labor Welfare Corporation does not pay a driver’s expenses or a traffic expense, and

It can be recognized that 100,000 won per month has been paid the transportation subsidy. According to the above facts, the transportation subsidy is a fixed wage, which is a regular and uniform payment of wage, whenever it provides contractual work to an employee who does not receive exclusive vehicles, the payment of which is finalized every month.

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 as the previous workers’ day, congratulatory money and valuables for the anniversary of establishment thereof, 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 among the allocated welfare points, and the remainder points may be paid by applying for the deduction of welfare points directly or after purchase by using a welfare card. The amount of money paid through the customized welfare system of the Korea Labor Welfare Corporation is 53,000 won (a married person) for an unmarried person in 2010 and 524,000 won (a mixed person 59,000 won) for each year, which can be recognized as having been continuously paid to the employees and employees of the Korea Labor Welfare Corporation according to the above regular wage standard.

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.