(영문) 부산지방법원 2015.2.12.선고 2014구합3397 판결

A. On December 25, 2010, the Plaintiff became a member of the Korea Workers’ Compensation and Welfare Service and gave birth to his/her child, and the Plaintiff was granted childcare leave (hereinafter referred to as “instant childcare leave”) from March 25, 201 to March 24, 2012 after the expiration of the period of leave before and after childbirth (from December 25, 2010 to March 24, 201).

B. At the beginning of the instant childcare leave, the Plaintiff’s occupational class and salary class were class 8 of class 5 in general service.

C. After the instant period of childcare leave, the Plaintiff filed an application for childcare leave payment with the Defendant as indicated in the column of “the filing date of the application for benefits” among the detailed statement of payment of childcare leave payment (hereinafter “attached Table”) prior to and after the instant period of childcare leave. The Defendant calculated KRW 1,542,150, out of the Plaintiff’s wage as ordinary wages, and paid KRW 524,330, which is the amount whose remaining payment is limited by 15% of ordinary wages, out of KRW 616,860, which is equivalent to 40% of ordinary wages, pursuant to Article 95 of the Enforcement Decree of the Employment Insurance Act.

D. On September 17, 2014, the Plaintiff filed an application with the Defendant for payment of the difference between the childcare leave benefits calculated based on the bonus, long-term continuous service allowance, meal service allowance, transportation subsidy, and customized welfare cards, by including the prescribed amount in ordinary wages, and the difference between the childcare leave benefits and the aforementioned childcare leave benefits paid to the previous Plaintiff. On September 26, 2014, the Defendant rejected the Plaintiff’s application on the following grounds (hereinafter “instant disposition”).

Where the full amount of childcare leave benefits for the period of return of the application for the difference in childcare leave has already been paid, and the provisions of Article 87 of the Employment Insurance Act and the guidelines for the treatment of maternity benefits due to changes in the interpretation of ordinary wages of our father ( March 12, 2014) have been completed, an appeal procedure, such as a request for review, shall be filed within 90 days from the date of disposition (hereinafter referred to as the "ordinary payment date of benefits"), but in the case of the plaintiff, the appeal procedure, such as the request for review, shall be returned according to the lapse of the period of request for review. 【No dispute over the ground of recognition', 【No dispute over the ground of recognition', evidence Nos. 1, 1, 2, and 3, and the entire purport of the arguments of the defendant;

A. The defendant's assertion

The Defendant asserts that the instant disposition, which rejected the Plaintiff’s application on September 26, 2014, cannot be deemed a disposition subject to an appeal, and even if it can be seen as a disposition subject to an administrative litigation, the Defendant’s disposition on March 12, 2012, which was the date of the last payment of the childcare leave to the Plaintiff on March 12, 2012, and that the instant lawsuit filed by the Defendant with the lapse of 90 days thereafter, is unlawful.

B. Determination

1) Where an administrative disposition or a decision on administrative appeal becomes final and conclusive due to the lapse of the appeal period, the final and conclusive power means that a person whose legal interest is infringed upon due to the disposition can no longer dispute the validity of the disposition or the decision, and does not recognize res judicata as such in the judgment, and thus, it does not become final and conclusive, and us or the court may not make any assertion or decision inconsistent with the facts underlying the disposition, and even if the previous disposition on revocation of childcare benefits becomes final and conclusive due to the lapse of the appeal period, there is no legal relation that there is no claim for medical care benefits, and as long as the previous disposition on revocation of childcare benefits becomes final and conclusive due to the lapse of the appeal period, it can again claim medical care benefits, and if so rejected, it may seek new rejection disposition, which is unlawful (see Supreme Court Decision 92Nu17181, Apr. 13, 1993). Meanwhile, Article 70(2) of the Employment Insurance Act provides that a person who intends to receive childcare benefits shall file an application within 12 months after the expiration date of childcare leave.

2) In light of the above legal principles and the relevant statutes, the plaintiff can exercise the right to receive childcare leave from one month after the date of commencing childcare leave. Thus, at least a claim for childcare leave for the period after September 17, 201, for the plaintiff's remaining period of time after September 17, 201, it cannot be deemed that three years have elapsed since the remainder of the extinctive prescription period of the plaintiff's claim for childcare leave, and the plaintiff's remaining right to claim for childcare leave against the defendant can exist. Therefore, if the plaintiff's claim is again filed against the defendant, the rejection disposition may still be asserted against the defendant, and if it is rejected, the period of filing the lawsuit shall also be determined based on the disposition of this case, which is a new rejection disposition. Since it is apparent that the plaintiff filed the lawsuit of this case on October 17, 2014, which is within 90 days after the date of the disposition of this case, the plaintiff may lawfully dispute the disposition of this case.

Therefore, the defendant's above assertion is without merit on different premises.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

Of the Plaintiff’s wages, bonuses, long-term continuous service allowances, meal subsidy, transportation subsidy, and customized welfare card are wages to be paid for a certain amount or quality of labor, and they constitute ordinary wages, regardless of the actual number of working days or the amount to be paid periodically and uniformly. Thus, 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 provisions of the attached Table shall be as specified in the statutes.

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 ordinary monthly wage calculated according to the Labor Standards Act as of the commencement date of childcare leave. Article 6(1) of the Enforcement Decree of the Labor Standards Act provides that ordinary wage refers to the hourly wage, daily wage, weekly wage, weekly wage, monthly wage, or contract wage, which is determined to be paid for contractual or total labor regularly and uniformly.

Whether a certain wage constitutes ordinary wage shall be determined based on the objective nature of the wage, which is the money or goods paid to an employee for a contractual work, and shall not be determined by formal standards, such as the name of the wage or the end of the payment cycle. Here, the remuneration for contractual work refers to the money or goods agreed 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 that provided or provided in 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 that provided in a labor contract cannot be deemed as the remuneration for a contractual work. The above determination of the remuneration for contractual work should 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. The mere fact that the money or goods were not paid immediately after the working hours or immediately after that payment was made within the near time cannot be said to constitute remuneration for contractual work.

Specifically, in order for a certain wage to be included in ordinary wages, ① a wage means a continuous payment at a certain interval of time, ② a uniform payment means not only a payment to all workers, but also a payment to all workers who meet certain conditions or standards. ③ The term “fixedness” means “a nature for which it becomes definite that a wage will be paid as a matter of course for labor provided by an employee regardless of achievements, achievements, or other additional conditions” (see Supreme Court en banc Decision 2012Da89399, Dec. 18, 2013).

2) Bonuses as to whether a person falls under ordinary wages

In full view of the records in Gap evidence No. 1 and the purport of this court and the entire arguments, the Korea Labor Welfare Corporation paid 600% of the monthly basic amount to all employees except employees subject to the annual salary system as bonus. Such bonus was paid in installments by 50% on each payment date, and the fact that the payment was made by calculating the number of working days for new appointment, reinstatement, temporary retirement, suspension from office, retirement, etc. during the bonus payment period from the first day of the month to the last day of the month can be recognized. According to the above facts, if the above payment was made, it can be deemed that the above bonus is finalized every month, and it constitutes ordinary wage which is a fixed wage regularly and uniformly paid.

B) Long-term continuous service allowances;

In full view of the statement of evidence No. 1 and the purport of the whole facts and arguments in this court, the Korea Workers' Compensation and Welfare Service shall pay a long-term continuous service allowance pursuant to the remuneration regulations (attached Table 2) according to the number of employees who have worked for not less than five years, and the employees subject to the annual salary system are not paid a long-term continuous service allowance, and according to the remuneration regulations [attached Table 2], it can be acknowledged that the employees subject to the annual salary system divided a certain group on an annual basis and paid the same long-term service allowance for 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 for not less than five years, it can be deemed that the payment is finalized every month, and it constitutes a fixed wage which is regularly

C) Comprehensively taking account of the description of 1,00,000 evidence No. 1, and the purport of the entire facts and arguments in this court, the Korea Labor Welfare Corporation shall pay a certain amount of monthly wage to employees on the date of payment of school meal support expenses within budgetary limits. However, if the period of service is less than one month, it shall be calculated on a daily basis, and the Plaintiff shall be paid the school meal support expenses of 10,000 won per month. According to the above facts of recognition, the school meal support expenses constitute ordinary wage, which is a fixed wage regularly and uniformly paid every month, since it can be deemed that the payment has become final and conclusive once

D) Comprehensively taking account of the entries in subparagraph 1 of the traffic support expense A and the purport of the entire facts and arguments, the Korea Workers' Compensation and Welfare Service shall pay the employee a self-driving expense or a traffic support expense within the scope of the budget, and if the period of service is less than one month, it shall be calculated on a daily basis. However, if an employee who provides exclusive vehicles in the Korea Workers' Compensation and Welfare Service does not pay a driver's or a traffic support expense, and the Plaintiff is paid a traffic support expense of KRW 100,000 per month. According to the above facts acknowledged, the traffic support expense can be deemed to have become final and conclusive every month, and it constitutes a fixed wage which is regularly and uniformly paid.

E) Comprehensively taking account of the description of No. 1 of the customized welfare card A and the purport of the entire arguments and facts in this court, the Korea Labor Welfare Corporation introduced a customized welfare program since 2006, and paid money and valuables paid under the previous worker’s day, congratulatory money and valuables for anniversary of the establishment of a new society, congratulatory money and valuables for life, self-development expenses, health examination expenses, etc., in the form of card points. Officers and employees are obliged to subscribe to group insurance with a certain point out of the allocated welfare points, and the rest points are entitled to receive payment of the settlement amount after 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 uniformly paid to unmarried persons in 2010 (598,000 won for a married person), and the amount of money paid to unmarried persons in 200,524,500 won for an unmarried person under the customized welfare card constitutes a fixed amount of ordinary wages.

3) According to the determination, bonuses, long-term continuous service allowances, meal allowance, transportation subsidy, and customized welfare card should be included in ordinary wages. Thus, under different premise, the above wage item should be excluded from ordinary wages calculation, and the disposition of this case rejecting the Plaintiff’s request for payment of the difference by calculating childcare leave benefits based on the above wage item is unlawful (On the other hand, the specific amount should be determined by the Defendant, considering the completion of the extinctive prescription period, and the actual disposition should be taken thereafter)

B) As to this, the Defendant alleged that the instant disposition is legitimate, since the instant disposition was rendered in accordance with the Ministry of Employment and Labor Labor Labor’s guidance for the labor management guidance (i.e., the Ministry of Employment and Labor’s guidance (i., January 23, 2014) that provides that the wage items claimed by the Plaintiff are included in ordinary wages as a matter of principle only for cases dealt with after the issuance of the Supreme Court ruling related to Article 5-2 of the former Guidelines for the Calculation of Ordinary Wages (Supreme Court en banc Decision 2012Da89399 Decided December 18, 2013) by which the Plaintiff’s wage items are included in ordinary wages, but the said guidance is not external binding force against the citizens, but should be determined through the organic interpretation of the relevant statutes, etc., which are contained in the foregoing different premise. Therefore, the Defendant’s aforementioned assertion on the premise is rejected.

C) In addition, the Defendant shall apply for benefits within 12 months from the first month after the date of commencement of childcare leave (Article 70(2) of the Employment Insurance Act) and an administrative agency shall determine the amount of childcare leave application for a period exceeding the above application period. The Plaintiff’s childcare leave period from March 25, 201 to March 24, 2012.

At least until March 24, 2013, the Plaintiff shall file an application for childcare leave until March 24, 2013, but at least 2014.

9. The plaintiff asserts that the disposition of this case, which rejected the application, was legitimate, since it had to be done in 17.

On the other hand, the above argument by the defendant was not included in the first ground for disposition, and as seen earlier, the plaintiff applied for temporary retirement benefits from June 13, 201 to February 28, 2012 to the defendant, and thus, under the Employment Insurance Act, the plaintiff applied for temporary retirement benefits lawfully within the period of application under the Employment Insurance Act. Thus, the defendant's above argument is without merit (the defendant's argument is purport that it should be followed by the period of application under the Employment Insurance Act based on his own application on September 17, 2014, or that the plaintiff's claim is seeking a difference equivalent to the already paid childcare benefits and legitimate temporary retirement benefits. Thus, whether the period of application under the Employment Insurance Act is observed should be determined as of the first date of application for temporary retirement benefits, and therefore, it is reasonable to deem that the plaintiff can additionally file a claim for temporary retirement benefits calculated by mistake as long as the three years of the extinctive prescription of the right to claim temporary retirement benefits has not expired

4. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition by admitting it.