2014Nu6702 Revocation of Disposition of revocation of application for the difference payment of childcare leave benefits

A

The Seoul Regional Employment and Labor Agency Head of the Seoul Regional Labor Office

Seoul Administrative Court Decision 2014Guhap61859 decided September 26, 2014

March 26, 2015

June 18, 2015

1. Revocation of the first instance judgment.

2. The instant lawsuit shall be dismissed.

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

1. Purport of claim

On April 28, 2014, the Defendant’s disposition of applying against the Plaintiff for payment of the difference in childcare benefits shall be revoked. 2. The purport of the appeal is revoked.

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts and circumstances of dispositions;

A. The Plaintiff is working at the Korea Workers’ Compensation and Welfare Service, and took respective childcare leave from January 17, 201 to January 16, 2012, and from September 3, 201 to September 2, 2013. The Plaintiff was paid childcare leave under the ordinary wage for the month calculated by the Defendant for the aforementioned childcare leave period.

B. On April 18, 2014, the Plaintiff delegated all of his/her authority regarding the application for childcare leave to D and Certified Labor Affairs Consultant B.

C. On April 24, 2014, B submitted an application (hereinafter referred to as “instant application”) to the Plaintiff as the Plaintiff’s representative, on the ground that “The amount of bonuses, long-term continuous service allowances, meal allowance, transportation subsidy, and customized welfare card is included in ordinary wages, and the Defendant is obligated to pay the Plaintiff the difference between the fixed amount of childcare leave benefits and the fixed amount of childcare leave benefits on the basis of ordinary wages, including the above amount.” On the ground that “the Defendant is obligated to pay the Plaintiff the difference between the fixed amount of childcare leave benefits and the fixed amount of childcare leave benefits paid on the basis of the ordinary wages, including bonus, etc., the Defendant is entitled to revoke the partial payment of the Plaintiff’s retirement leave benefits for the Plaintiff. The Defendant shall pay the difference between the fixed amount of childcare leave benefits calculated on the basis of the ordinary wages, including bonus, etc., and 12 persons including E, etc. (hereinafter referred to as “13 persons including the Plaintiff, etc. when excluding E”).

D. On April 25, 2014, D and B submitted to the Defendant the document stating that “13 applicants, including the Plaintiff, were submitted to the Defendant as the 13 representative including the Plaintiff, and the purport of the request for examination is not to purport of the request for examination (except those who are in progress with the procedure for the request for examination).” The document stating that “The request for guidance on the progress of the procedure for the future administrative litigation is not made.”

E. On April 28, 2014, the Defendant notified D and B of the return of the application for the difference in benefits for childcare leave, stating the following as the title, and returned 12 applications, including the Plaintiff, except for E applications, among the 13 applications filed by the Plaintiff, etc. (hereinafter referred to as the “return of the application”).

1. Related matters;

A. An application for the difference between childcare leave and childcare leave filed by 13 persons including the Plaintiff (hereinafter referred to as "14.24 April 24").

(b) Request for return of the application: Attorneys D and one other (hereinafter referred to as "14.25 April 25), respectively;

2. On April 25, 14.25, the applicant except those who are already in the process of the request for examination, requested return of the application for the difference in childcare benefits by 13 applicants, including the Plaintiff, etc., submitted to the Korea branch office on April 24, 14., and return all of the applications filed by 12 applicants including the Plaintiff, etc.

* A person who is already in the process of a request for review: E

3. In addition, the administrative litigation shall be 90 days from the date the existence of the original disposition is known, and the period of reference shall be less than one year from the date the existence of the original disposition is available.

[Ground] Facts without dispute, Gap evidence 1-1, Eul evidence 4-1 through 12, Eul evidence 1, 2, 5, 9, 10, 11, Eul evidence 3-1 through 10, Eul evidence 4 and 8-2, and the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

A. The defendant's assertion

With respect to the Plaintiff’s claim that the return of the instant application is deemed to be the rejection disposition against the Plaintiff’s application for temporary retirement benefits on April 24, 2014, and that the rejection disposition is unlawful, the Defendant asserts that the return of the instant application is merely an issue following the Plaintiff’s return request, and that the return of the application does not constitute the Plaintiff’s rejection of the said application, and that there

B. Determination

1) Since an administrative disposition, which is the subject of an appeal litigation, is a disposition that directly affects the rights and obligations of citizens, among dispositions by an administrative agency as an exercise of public authority, and thus, does not constitute an administrative disposition that is subject to an appeal litigation, inasmuch as such disposition does not directly alter the rights and obligations of the other party or the person concerned, such as a simple de facto notification, etc. (see, e.g., Supreme Court Decision 82Nu161, Sept.

2) According to the above facts, it is reasonable to view that the Defendant received a request from the Plaintiff for the return of the instant application (this seems to have withdrawn the application for childcare leave before April 24, 2014) and simply responded to the request without undergoing a substantive examination. Therefore, the return of the instant application merely constitutes a mere factual act upon the Plaintiff’s request, and thus, it cannot be deemed that the Defendant’s act directly affects the existence of the Plaintiff’s right to apply for childcare leave and is an administrative disposition subject to appeal.

3) The plaintiff's request for the return of the above application is not the withdrawal of the plaintiff's request for temporary retirement benefits on April 24, 2014, but the above rejection disposition against the plaintiff's request for temporary retirement benefits on April 24, 2014. Thus, the plaintiff's request for the return of the application of this case is the rejection disposition against the plaintiff's request for temporary retirement benefits on April 24, 2014. The plaintiff's request for the return of this case's request for the above temporary retirement benefits on April 24, 2014. The plaintiff's request for the return of this case's request for the above temporary retirement benefits on April 24, 2014 and the plaintiff's request for the return of this case's request for the above temporary retirement benefits on April 20, 2014. The plaintiff's request for the return of the application of this case's request for the above temporary retirement benefits on the plaintiff's request for the return of this case's request for the plaintiff's request for the return of this case's request.

3. Conclusion

Therefore, the lawsuit of this case is unlawful and thus it shall be dismissed, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance shall be revoked and the lawsuit of this case shall be dismissed as per Disposition.

Judges of the presiding judge, Yellow Judge

Judges Hun-Ba

Judges Kim Gin-ran