2017Guhap66084 Disposition revocation of the payment of site for childcare leave benefits, etc.

A

The Head of the Seoul Regional Employment and Labor Office Seoul Gangnam District Office

September 19, 2017

October 19, 2017

1. All of the Plaintiff’s claims are dismissed. 2. Costs of lawsuit are assessed against the Plaintiff.

On March 8, 2017, the Defendant’s disposition of site pay for childcare leave benefits and the disposition of site pay for maternity leave benefits to the Plaintiff shall be revoked.

1. Details of the disposition;

A. On October 21, 2014, while working for B Co., Ltd., the Plaintiff was granted maternity leave from October 1, 2014 to December 29, 2014 and used the childcare leave for a period from October 1, 2014 to December 29, 2014, and thereafter, the Plaintiff was granted childcare leave for a period from December 30 to December 29, 2015.

B. On February 24, 2017, the Plaintiff filed an application for the payment of childcare leave benefits during the above period of childcare leave, and on March 3, 2017, applied for the payment of maternity leave benefits during the above period of maternity leave. On March 8, 2017, the Defendant filed an application with the Plaintiff for the payment of childcare leave benefits after the lapse of 12 months from the end of the period of maternity leave, and filed an application for the payment of childcare leave benefits after the lapse of 12 months from the end of the period of childcare leave (hereinafter referred to as “instant payment of childcare leave benefits”) and the payment of the land for childcare leave benefits (hereinafter referred to as “instant payment of land for childcare leave benefits”), respectively (hereinafter referred to as “each of the instant dispositions”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, Eul evidence Nos. 1 and 2, and purport of the whole pleadings

A. The plaintiff's assertion

1) The primary argument

Considering Article 36(2) of the Constitution that provides for the duty of the State to endeavor to protect maternity, Article 36(2) of the Constitution that provides that female workers’ work shall be subject to special protection and shall not be discriminated against in terms of employment, wages, and working conditions, Article 32(4) of the Constitution that provides that childcare leave benefits and the purport of the system of maternity leave, which are introduced to prevent women’s career interruption, etc., Article 107 of the Employment Insurance Act provides for three years of the extinctive prescription period for claims for childcare leave benefits and maternity leave benefits, but Articles 70(2) and 75 subparag. 2 of the Employment Insurance Act that limit the period of application for childcare leave benefits and maternity leave benefits to 12 months after the date childcare leave or maternity leave is terminated, it is reasonable to interpret that the period of application for childcare leave benefits and maternity leave benefits is merely a punishment provision. Accordingly, if the Plaintiff satisfies all the requirements for payment of childcare leave benefits prescribed in Article 70(1) of the Employment Insurance Act and the Defendant who requested payment of childcare leave benefits and maternity leave benefits before the expiration period of Article 107(2).

2) Preliminary assertion

In the case of maternity leave benefits, Article 75 subparagraph 2 of the Employment Insurance Act provides that the period of direct application is the requirement for payment. On the other hand, in the case of childcare leave benefits, Article 70 (2) of the Employment Insurance Act separately provides the period of application, not each subparagraph of Article 70 of the Employment Insurance Act, and in the case of childcare leave benefits, Article 70 (1) subparagraph 3 of the Employment Insurance Act provides that the period of application is the requirement for payment, such as the case of maternity leave benefits before amendment by Act No. 10895, July 21, 2011. In this regard, the meaning of "application" under Article 70 (2) of the Employment Insurance Act is merely an act of seeking administrative demands while the obligation to pay benefits has already occurred, and it should be interpreted differently from the meaning of "request for payment" under Article 70 (1) of the Employment Insurance Act for childcare leave benefits, which satisfies the requirement for payment under Article 70 (1) of the Employment Insurance Act and Article 107 of the Employment Insurance Act for more than 70 years.

It is reasonable to interpret that payment of childcare leave benefits should be made regardless of whether the application period under Paragraph (2) has expired. Therefore, the Defendant’s refusal of the Plaintiff’s above claim on the ground that the application period under Paragraph (2) of Article 70 of the Employment Insurance Act has lapsed on the Plaintiff’s request for payment of childcare leave benefits prior to the expiration of the three-year extinctive prescription period should be revoked as unlawful.

B. Determination

1) Article 70 (1) of the Employment Insurance Act provides that "the Minister of Employment and Labor shall make an application for childcare leave under Article 19 of the Equal Employment Opportunity and Work-Family Balance Assistance Act (hereinafter referred to as "the Equal Employment Opportunity Act") for 30 days or more (excluding the period overlapping with the period of maternity leave under Article 74 of the Act), and that "the insured worker shall pay childcare leave benefits to an insured worker meeting all the following requirements" under subparagraph 1, and "the insured worker shall be 180 days or more in total before the commencement of the period of childcare leave under Article 41" under subparagraph 2, and "the insured worker shall not receive childcare leave for 30 days or more or the reduction of working hours for the same child under Article 19-2 of the Equal Employment Opportunity and Work-Family Balance Assistance Act for 30 days or more after the expiration of the period prescribed by Presidential Decree" and Article 70 (2) of the same Act provides that "the insured worker shall apply for childcare leave benefits within the aggregate of 1 month to 7 days or more after the end of the period prescribed by Presidential Decree".

2) In full view of the content of the relevant statutes, such as the Employment Insurance Act, the legislative intent, amendment process, the form and system thereof, and the meaning and nature of childcare leave benefits, etc., the respective application period of this case is reasonable to deem that the procedural requirements are stipulated in order to receive childcare leave benefits or maternity leave benefits, etc. under the respective application period of this case. Thus, an application for childcare leave benefits benefits or maternity leave benefits, etc. granted after the application period under the respective application period of this case does not meet the procedural requirements, and thus, an administrative agency’s land-based disposition is lawful (see Seoul High Court Decision 2016Nu81972, May 11, 2017).

A) Article 9 of the Framework Act on Social Security provides that “All citizens shall have the right to receive social security benefits as prescribed by social security-related statutes (hereinafter referred to as “right to receive social security benefits”). Determination of the existence or scope of the right to receive social security benefits can be said to be “social security-related statutes.” Meanwhile, the Employment Insurance Act provides that, as part of the social insurance system, an employment insurance system provides for the stabilization of workers’ livelihood and the promotion of job-seeking activities, by allocating the burden to many people through national insurance technology when reasons such as unemployment arise. Although childcare leave benefits and maternity leave benefits (which are called “the initial maternity leave benefits” but whose name was changed after the revision, are mandatory provisions in such statutes, and the existence or scope of the right to receive social security benefits are also determined by the Employment Insurance Act. According to the Employment Insurance Act and subordinate statutes, the payment of childcare leave benefits and childcare leave benefits shall be made to the head of an employment security office who has used the employment insurance premium or maternity leave benefits to meet the requirements for payment of unemployment benefits and other benefits through the employment insurance fund’s review.

B) Article 5-2 of the Employment Insurance Act (hereinafter “former Employment Insurance Act”) newly established on August 14, 201 as the Act No. 6509; Article 55-7 of the same Act provides for the same requirement as those for childcare leave benefits under Article 70 or 75 of the current Employment Insurance Act; however, the main sentence of Article 55-2(1)3 of the former Employment Insurance Act provides for the same requirement as those for childcare leave benefits under Article 55-7 of the same Act within 6 months after the date of commencement of childcare leave benefits. The main sentence of Article 55-7(2) of the former Employment Insurance Act provides for the same requirement as those for childcare leave benefits under Article 5-7 of the former Employment Insurance Act within 6 months after the date of termination of the period for application for childcare leave benefits under Article 50 of the same Act. However, a person who was unable to apply for childcare leave benefits under the Presidential Decree within 30 days after the date of termination of the period for application for childcare leave benefits under Article 55-7 of the same Act.

Meanwhile, in light of the above provisions of each Employment Insurance Act on childcare leave benefits and maternity leave benefits, and the purport of the amendment thereof, etc., the legal nature and meaning of the provision on the period of application for childcare leave benefits differs from the case of maternity leave benefits, even if the provision on the period of application is somewhat different from the case of maternity leave benefits, it is difficult to view that the legal nature and meaning of the provision on the period of application for childcare leave benefits differs from that of the above two benefits, and where childcare leave benefits are applied within the same period as the case of maternity leave benefits prescribed by the procedural requirements, it seems that the provision on the "in cases of childcare leave benefits, to apply within the period of application" prescribed in Article 70 (2) of the Employment Insurance Act as the procedural requirements for the "in cases of childcare leave benefits, to apply for childcare leave benefits within the same period of time as the case of maternity leave benefits prescribed by the procedural requirements, it seems that the application period for childcare leave benefits should be determined differently by taking into account the degree of physical and mental suffering that a childbirth affects women and the need for recovery thereof, and that procedural requirements for childcare benefits are applied within the two months.

C) Article 107(1) of the Employment Insurance Act provides that “the right to receive childcare leave benefits or maternity or maternity leave benefits shall expire if it is not exercised for three years.” Article 107(2) of the same Act provides that the interruption of extinctive prescription shall be interrupted upon a beneficiary’s request. As seen earlier, in order to be able to receive childcare leave benefits or maternity leave benefits, etc., the extinctive prescription shall also meet the procedural requirements of “application for childcare leave benefits or maternity leave benefits within the application period” under Article 70(2) or Article 75 subparag. 2 of the Employment Insurance Act. Since a beneficiary who failed to meet the above requirements is no longer entitled to childcare leave benefits or maternity leave benefits, there is no room to apply the above extinctive prescription provisions after the application period expires. On the other hand, where the beneficiary satisfies all the requirements such as childcare leave benefits or maternity leave benefits within the application period, etc., the above provision on extinctive prescription becomes meaningful only, and an application of the beneficiary constitutes one of the causes suspending the extinctive prescription.

D) Although the former Employment Insurance Act is a matter of the Employment Insurance Act, in a case where an application for childcare leave benefits was filed at the time three years have not passed since the date of childbirth, the Supreme Court determined that a disposition not to pay childcare leave benefits was lawful on the ground that the application period set by the Employment Insurance Act was excessive (see, e.g., Supreme Court Decision 2008Du19420, Dec. 24, 2008).

3) Based on the foregoing legal doctrine, the health care unit, the Plaintiff filed an application with the Defendant for payment of maternity leave benefits on March 3, 2017, which was after the lapse of 12 months from December 29, 2014 when maternity leave was terminated, and the Plaintiff filed an application for payment of childcare leave benefits on February 24, 2017, which was after the lapse of 12 months from December 29, 2015 when childcare leave was terminated. Thus, each of the dispositions of this case is legitimate for the Defendant to file the application period, and the Plaintiff’s primary and preliminary assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge's freeboard

Judge Lee Dong-ho

Judge Lee Jong-soo