2018Nu52343 Revocation of the determination of site for temporary retirement benefits for childcare

A

The Head of Seoul Regional Employment and Labor Agency

Seoul Administrative Court Decision 2018Gudan52757 decided June 4, 2018

October 11, 2018

October 25, 2018

1. Revocation of a judgment of the first instance;

2. The instant lawsuit shall be dismissed.

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

1. Purport of claim

The Defendant’s decision on the payment of the site for temporary retirement benefits on October 25, 2017 to the Plaintiff and the decision on the payment of the site for temporary retirement benefits on November 7, 2017 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. All of the plaintiff's claims are dismissed.

1. Determination as to the legitimacy of the instant lawsuit

ex officio, we examine the legitimacy of the instant lawsuit.

A. The Plaintiff sought the revocation of the decision on the payment of childcare benefits for the period from November 11, 2014 to September 10, 2015, as to the childcare benefits for which the Defendant applied, on October 25, 2017 and November 7, 2017 (hereinafter collectively referred to as “instant disposition”).

B. A lawsuit seeking the revocation of an illegal administrative disposition is a lawsuit seeking the restoration to the original state by excluding an illegal state caused by the illegal disposition, and protecting and remedying the rights and interests infringed or obstructed by the disposition. Thus, in a case where the infringement of rights and interests is resolved due to the circumstances after the disposition, there is no benefit of lawsuit seeking the revocation of the disposition (see Supreme Court Decision 2004Du4369, May 13, 2005).

However, according to the purport of the entire pleadings, the defendant is pending in the court of first instance.

On May 29, 2018, when the Plaintiff first applied for childcare leave from September 1, 2014 to November 10, 2014, and the Defendant notified that he would pay childcare leave from September 11, 2014 to the Plaintiff, the Defendant was not separately notified of the payment of the remainder, and the Defendant paid additional KRW 10,000 from November 11, 2014 to September 10, 2015 on the ground of “the Plaintiff did not guide the application procedure for benefits for the remaining period of childcare leave.” As such, the Plaintiff already received both unpaid childcare leave benefits to be sought through the cancellation of the instant disposition, and thus, the Plaintiff has no legal interest to seek the cancellation of the instant disposition.

2. Conclusion

If so, the plaintiff's lawsuit of this case shall be dismissed, and since the judgment of the court of first instance is unfair with different conclusions, the judgment of the court of first instance shall be revoked and the lawsuit of this case shall be dismissed, and the total costs of lawsuit shall be borne by the defendant.

The presiding judge, the whole judge;

Judges Min Il-young

Judges Lee Jae-in