(영문) 광주고등법원 2020.5.8.선고 2019누12509 판결

2. On April 30, 2019, the decision on the payment of the site for childcare benefits rendered by Defendant against the Plaintiff on April 30, 2019 is revoked.

Purport of claim and appeal

It is as set forth in the text.

Reasons

1. Details of the disposition;

A. While serving in the Gwangju Regional Headquarters, Plaintiff used childcare leave for 28 days from February 18, 2019 to March 17, 2019, and 2 days from April 9, 2019 to April 10, 2019 for the same child.

B. On April 26, 2019, the Plaintiff filed an application for childcare leave with the Defendant. On April 30, 2019, the Defendant rendered a decision that the Defendant would not pay childcare leave on the ground that the Plaintiff was not granted childcare leave for at least 30 days (hereinafter “instant refusal disposition”).

[Ground for Recognition] Unsatisfy, Gap evidence Nos. 1 through 3, Eul evidence Nos. 1 and 2, the purpose of all pleadings

2. Whether the refusal disposition of this case is legitimate

A. Summary of the plaintiff's assertion

Article 70(1) of the former Employment Insurance Act (amended by Act No. 1657, Aug. 27, 2019; hereinafter referred to as the "Employment Insurance Act") does not require the payment of childcare leave for 30 days or more, and Article 19-4 subparag. 3 of the former Equal Employment Opportunity and Work-Family Balance Assistance Act (amended by Act No. 1658, Aug. 27, 2019; hereinafter referred to as the "Equal Employment Opportunity Act") provides that childcare leave may be used in installments once. The above provision provides that childcare leave shall not be granted for 30 days or more by adding up the childcare leave to the childcare leave for 30 days. Accordingly, the Plaintiff is entitled to childcare leave for 30 days or more.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Relevant legal principles

Since the law is a general norm with the same binding force against many and specified persons in principle, it shall be interpreted to clarify the standard meaning of the law and to ensure objective feasibility, and as much as possible, it shall not undermine legal stability by maintaining consistency acceptable to all the persons. Meanwhile, since positive law is prepared to be regulated in consideration of a universal and typical matter, it is necessary to interpret and apply the law so that it can be the most reasonable solution that meets the specific case in a variety of cases that occur in society. In short, the purpose of statutory interpretation should be to find concrete feasibility within the scope that does not undermine legal stability.

Furthermore, as a matter of principle, the interpretation of the language and text used in the law as much as possible is to be faithful to the ordinary meaning of the language and text of the law. As such, the Act on the Insurance of Workers provides that the Minister of Employment and Labor shall grant childcare leave pursuant to Article 70(1)30 days (excluding the period overlapping with the period of maternity leave pursuant to Article 74 of the Labor Standards Act) of childcare leave under Article 19 of the Equal Employment Opportunity and Child Care Leave Act to a child who meets certain requirements among the insured workers who have been granted childcare leave (see, e.g., Supreme Court en banc Decision 2011Da112391, Jun. 21, 2018) and Article 70(1) of the same Act provides that childcare leave under Article 19 of the same Act shall be granted to a child under 30 days (including the period of childcare leave under Article 74 of the same Act and the period of childcare leave under Article 19 of the Equal Employment Opportunity and Labor Act).

B) Such a system of childcare leave has been grounded on the constitutional basis of Article 32(4) of the Constitution that provides special protection for female labor and Article 36(2) of the Constitution that provides for the State’s duty of protecting maternity. However, the current system of childcare leave was established for the purpose of promoting women’s participation in the labor market, promoting women’s work and family-family balance, encouraging childbirth and enhancing child welfare, sharing the male gender’s family responsibilities, and achieving substantial equality in fostering family members (see Constitutional Court en banc Decision 2005Hun-Ma156, Oct. 30, 2008). In addition, when a worker uses childcare leave, it was also established for the purpose of promoting the welfare of workers by preserving income during the period of childcare leave and promoting the use of the childcare leave system.

C) Child-care leave benefits are able to be paid out of the account that pays unemployment benefits out of the Employment Insurance Fund. The financial resources of this account are based on the insurance premiums paid by employers and workers [Article 6 of the Employment Insurance Act, Article 13 of the Act on the Collection of Insurance Premiums, etc. for Employment Insurance and Industrial Accident Compensation Insurance (amended by Act No. 16268, Jan. 15, 2019; hereinafter referred to as the "Employment Insurance Act"). Article 70 (1) 1 of the Employment Insurance Act requires childcare leave benefits to be used for at least 180 days in total by the insured unit period under Article 41 of the same Act prior to the commencement date of childcare leave. In addition, childcare leave benefits are able to be used for the benefit of an individual (private utility), and it is difficult to secure the livelihood of the beneficiary as well as his/her family members at the time of the enactment of the Employment Insurance Act from 30 days to 30 days after the commencement date of childcare leave.

However, on August 14, 201, where the provision on childcare leave was newly established, the childcare leave could not be used by dividing it at the time of the enactment of the provision on childcare leave, and thereafter, it became possible to use it in installments through the revision of the Equal Employment Opportunity Act (amended by Act No. 8781, Dec. 21, 2007); Article 55-2 of the former Employment Insurance Act (amended by Act No. 6509, Aug. 14, 2001) provides that the period of application shall be extended within 12 months from the first day of childcare leave after the expiration of the period of application [the period of application for childcare leave shall be extended to 3 months from the expiration of the period of childcare leave after the expiration of the period of application [the period of application for childcare leave shall be extended to 10 or more days from the expiration of the period of application for childcare leave under the former Employment Insurance Act (amended by Act No. 10895, Jul. 21, 2011].

E) Therefore, in full view of the above legislative intent and purpose of the childcare leave system, history of its amendment, relationship with other Acts, and nature of childcare leave, etc., insofar as Article 70(1) of the Employment Insurance Act does not require that childcare leave be granted for 30 days or more, it is reasonable to view that a worker whose total period of childcare is 30 days or more may file an application for childcare leave even if he/she does not have been granted childcare leave for 30 days or more consecutively. 3) Specific determination is reasonable, inasmuch as Article 70(1) of the Employment Insurance Act does not require that childcare leave be granted for 30 days or more.

In full view of the following circumstances revealed in light of the aforementioned evidence as stated in Gap evidence Nos. 4 and Eul evidence Nos. 1-1 and 4, and the purport of the entire pleadings, the plaintiff can file a claim for childcare leave for the defendant as it constitutes an insured person who has been granted childcare leave for not less than 30 days. Therefore, the rejection disposition of this case rejecting the plaintiff's application for childcare leave for the reason that the plaintiff did not receive childcare leave for not less than 30 days consecutively is illegal.

① The Plaintiff used a total of 30 days of childcare leave for the same child from February 18, 2019 to March 17, 2019, and from April 9, 2019 to April 10, 2019. Meanwhile, the Plaintiff’s child was hospitalized at the Jeonnam University Hospital during the period from February 13, 2019 to March 15, 2019, and the Plaintiff received outpatient treatment at the same hospital on April 10, 2019. Since the Plaintiff’s child childcare leave appears to have been for the purpose of hospital treatment and hospital treatment of the said child, the Plaintiff’s child was used for the purpose of raising the child as a petition for childcare leave.

② The childcare benefits system was established for the purpose of promoting the welfare of workers by compensating for their income during the period of childcare leave. As such, it would be consistent with the legislative intent of compensating for the decreased income, regardless of the fact that the employee’s income has decreased due to childcare leave. In the case of the Plaintiff, the ordinary wage in January and February 2019 was KRW 5,100,000 per month, and KRW 5,380,000 per month, and the actual income in March and February was KRW 5,100,000 per month, and the actual income in March and 3 months was paid KRW 30,000,000 per month, and thus, the actual income was reduced considerably. Such reduction is due to childcare leave, and thus, it seems that it would be consistent with the purport of the childcare benefits system to compensate the Plaintiff for the decreased income.

③ If it is deemed that a claim for childcare leave may be filed when the divided period of childcare leave exceeds 30 days, the childcare leave may be granted on an extreme basis, even if the childcare leave is used by dividing the childcare leave by 15 days at the age of 0 and 8. However, unlike the above case, the premise exists that the Plaintiff’s use of childcare leave by dividing the childcare leave at an interval of about 20 days is different from the above case’s case’s case’s childcare leave. Thus, even if childcare leave is used by dividing the childcare leave within a relatively short period of time, the Plaintiff may not reject the claim for childcare leave within the same extreme period as the Plaintiff’s case’s case’s. It is reasonable to deem that the payment of childcare leave for the combined period of childcare leave within the period of 30 days after dividing the childcare leave by 30 days or less, which contradicts the legislative purport of the Employment Insurance Fund’s provision regarding childcare leave benefits within the period of 20 months after adding up the period of childcare leave benefits within the period of 10 months after the date of application.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted on the grounds of its reasoning, and the judgment of the court of first instance differs from this conclusion, and thus the plaintiff's claim of this case is revoked and accepted.