(영문) 광주고등법원 2018.10.24.선고 2018누1338 판결

The judgment of the first instance court is revoked. In the first instance court, the non-approval disposition of the Defendant against the Plaintiff on July 25, 2016 is revoked. Preliminaryly, the Defendant’s decision on the non-approval of the employment insurance against the Plaintiff on December 6, 2017 is revoked (the Plaintiff filed the instant lawsuit against the Director of the Employment Center of Jeju Special Self-Governing Province at the first instance court, but the previous office was incorporated into the Employment and Trade Bureau of Jeju Special Self-Governing Province on August 23, 2018 following the amendment of the Ordinance on the Establishment of the Jeju Special Self-Governing Province and the Quota Ordinance, and the instant court corrected the Defendant from the Director of the Employment Center of Jeju Special Self-Governing Province to the Jeju Special Self-Governing Province as the Defendant’s act).

Reasons

1. Details of the disposition;

A. On October 21, 2013, the Plaintiff was employed as a public official on a part-time contract of Jeju Special Self-Governing Province as of October 20, 2015, and began to work in the Jeju Special Self-Governing Province ○○○○○○○○ Bureau, and the content that the contract-based public official system was abolished and the system of a public official on a part-time basis is introduced.

On October 21, 2015, the Local Public Officials Act was amended and enforced on December 12, 2013, the same day was converted to a public official on a general fixed-term basis. Since then, on October 21, 2015, an employment agreement was entered into between the Defendant and his/her employer on appointment with the content that his/her working period shall be from October 21, 2015 to October 20, 2017, and on October 21, 2017, again on October 21, 2017, with the content that his/her working period shall be changed from October 21, 2017 to October 20, 2018.

B. On July 20, 2016, the Plaintiff filed an application with the Defendant for purchase of employment insurance under Article 10 subparag. 3 of the Employment Insurance Act and Article 3-2(2) of the former Enforcement Decree of the Employment Insurance Act (wholly amended by Presidential Decree No. 27549, Oct. 18, 2016) (hereinafter referred to as “instant application”). On July 25, 2016, the Defendant issued a non-approval of purchase of employment insurance (hereinafter referred to as “instant first disposition”) on the ground that the Defendant cannot file an application for purchase of employment insurance after the expiration of the period of application for three months from the first appointment.

C. On October 17, 2016, the Plaintiff filed a petition with an employment insurance examiner for review on the instant disposition, but was dismissed on January 3, 2017. On January 24, 2017, the Plaintiff filed a petition for review with the Employment Insurance Review Committee, but was dismissed on March 8, 2017, and the instant lawsuit was filed on June 7, 2017. Since the Plaintiff concluded a new appointment contract with the Defendant around October 21, 2017, the Plaintiff asserted that the date of the said appointment contract should be deemed to be “the date of appointment under Article 3-2(2) of the Enforcement Decree of the Employment Insurance Act” and on November 29, 2017, the Defendant applied for purchase of employment insurance to the Defendant on the ground that the Plaintiff was not only newly appointed on October 21, 2017, but also cannot be deemed to have been appointed on the date of appointment.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 4 through 7, Eul evidence Nos. 1, 2, 3 through 6, and 9, and the purport of the whole pleadings

2. Judgment as to the main claim

A. The plaintiff's assertion

Article 3-2 (2) of the former Enforcement Decree of the Employment Insurance Act (wholly amended by Presidential Decree No. 27549, Oct. 18, 2016; hereinafter referred to as the "Enforcement Decree") (hereinafter referred to as the "Enforcement Decree of the Employment Insurance Act") which provides the period of application for subscription for employment insurance for three months from the date of appointment shall be deemed a provision of decoration, and the right to apply for subscription shall not be lost upon the lapse of that period. Article 10 (3) of the Employment Insurance Act does not impose any limitation on the period of application for subscription for employment insurance. Since Article 10 (3) of the Employment Insurance Act does not impose any limitation on the period of application for subscription for employment insurance, the right to apply for subscription shall not be lost after the lapse of three months from the delegation scope of higher law. This case's provision limits the period of application for subscription for employment insurance to three months, unlike general public officials, is contrary to the principle of equality, and is contrary to the spirit of the Constitution protecting women's work.

Ultimately, the instant application is deemed lawful after three months from the date of appointment of the Plaintiff. Thus, the instant disposition that rejected the Plaintiff’s application for joining is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) The period and circumstances of the instant application

According to the provisions of this case, where a public official subject to insurance is appointed for the first time to the relevant agency, the head of the agency who appoints a public official in extraordinary civil service or contract (term system) shall immediately confirm his/her intention to subscribe to employment insurance (limited to actual business benefits) and apply for employment insurance to the head of the competent employment security office within three months from the date of appointment for the public official subject to insurance, who is confirmed to have the intention to subscribe to employment insurance (Article 1 (1)) (main sentence of paragraph (2)). However, where a public official subject to insurance wishes to be a public official, he/she may directly apply for the subscription

In the instant case, the Plaintiff was appointed as a public official in contractual service on October 21, 2013, and the Defendant, the head of the relevant affiliated agency, confirmed the Plaintiff’s intention to purchase the employment insurance and applied for the purchase of the employment insurance within three months from the date of appointment when the Plaintiff’s intention to purchase the employment insurance. However, according to the evidence and the overall purport of the pleadings submitted, the Defendant did not confirm and confirm the Plaintiff’s intention to purchase the employment insurance, and did not file an application for the purchase of the employment insurance accordingly, and thereafter, the Plaintiff became aware that it is possible to purchase the employment insurance voluntarily around June 2016.

On December 10, 2013, the defendant confirmed the plaintiff's intention to subscribe to employment insurance by gathering "Guidance on Loss of Insured Status of Employment Insurance following the reorganization of public officials' occupation (Evidence No. 7)" to the plaintiff on December 10, 2013, and argued that the plaintiff did not express his intention to subscribe to employment insurance even though the plaintiff confirmed the above public notice. However, the above public notice is for extraordinary civil service in accordance with the amendment of the State Public Officials Act and the Local Public Officials Act, and it is for guiding the loss of insured status of public officials in contractual service, and it is not for the first public official subject to employment insurance to inform them of the voluntary subscription system or to confirm his intention to subscribe to employment insurance. Therefore, the plaintiff's intention to subscribe to employment insurance by the above public notice cannot be deemed to have been confirmed. Therefore,

2) Interpretation of the instant provision

A) At the trial of a specific dispute case, the authority to determine the meaning, content, and scope of application of the law or the provision of the law, and immediately the authority to interpret and apply the law constitutes an essential substance of the judicial power, and interpreting the law in harmony with the constitutional norm is a major principle of interpretation and application of the law (see Supreme Court Decision 2004Du10289, Feb. 12, 2009).

B) As seen earlier, when a public official subject to employment insurance is appointed, the head of the affiliated agency shall confirm the intention of subscription and apply for employment insurance within three months from the appointment date. However, in cases where the head of the affiliated agency did not apply for subscription within three months from the appointment date, or the head of the affiliated agency did not confirm the intention of subscription of the public official subject to insurance, as in the instant case, and three months from the appointment date has passed since the head of the affiliated agency did not confirm the intention of subscription of the public official subject to insurance, it is interpreted that the public official subject to insurance can apply for subscription within three months from the appointment date, and that the period of application is too excessive (the Employment Report Act or the Enforcement Decree does not provide for the remedy of the public official subject to insurance in the case above), and the Defendant also issued the instant disposition No. 1 under such interpretation.

C) Under the Constitution, all citizens have the right to a life worthy of human dignity (Article 34(1)), and the State has the duty to endeavor to promote social security and social welfare (Article 34(2)). The Employment Insurance Act introduced to perform the above State’s duty is an Act with the aim of preventing unemployment and promoting employment through the enforcement of employment insurance and facilitating the stabilization of workers’ livelihood by providing benefits necessary for their unemployment in the event of unemployment for workers (Article 1). However, in the case of public officials in extraordinary civil service and contractual service, the State Public Officials Act and public officials under the Local Public Officials Act are governed by the Public Officials Pension Act and the Local Public Officials Act. However, in the case of public officials in special civil service and contractual service, there are almost little cases where the guarantee of their status is rare and there are no benefits corresponding to unemployment benefits, and thus, public officials in special service and contractual service are also able to purchase the above employment insurance policy for the purpose of guaranteeing their stable livelihood and supporting their job-seeking activities based on their will (Article 1).

D) The instant provision, which provides for voluntary subscription procedures, first of all, imposes on the head of the affiliated agency the obligation of the relevant public official to apply for subscription to the employment insurance upon verifying the public official's intention to subscribe to the employment insurance, and thus, in principle, the application for subscription to the employment insurance is not the obligation of the public official subject to subscription to the employment insurance, but the obligation imposed on the head of the affiliated agency. The instant proviso stipulates that the public official subject to subscription is entitled to directly apply for subscription within three months from the appointment date. The purport of the instant proviso is as stated in the "Guidance on the Voluntary Subscription System for the Employment Insurance of Public Officials in Special Service and Contract Service (Evidence No. 3)", if the head of the affiliated agency neglects to confirm the intention of the public official subject to subscription to the subscription or refuses to apply for subscription, it is complementary to allow the public official subject to subscription to directly apply for subscription in such cases. Therefore, even if a public official subject to subscription directly can apply for subscription pursuant to the foregoing proviso,

E) However, the above proviso limits the period of application even when a public official subject to subscription directly applies for membership for three months from the date of appointment. If a public official subject to subscription becomes aware of his/her failure to perform his/her duties before the expiration of three months from the date of appointment, a public official subject to subscription directly applies for membership pursuant to the above proviso. However, there may be cases where a public official subject to subscription becomes aware of his/her failure to perform his/her duties

Even if there is no reason attributable to the public official subject to insurance, it is unreasonable to uniformly limit the period of application to the relevant public official within three months from the appointment date of the public official, and it is against the spirit of the Constitution that provides for the duty to promote social security and social welfare of the State.

F) Furthermore, Article 3-2 of the Enforcement Decree was amended on September 15, 2011 as the date of the first appointment, which is not a "date of appointment" as seen in the evidence Nos. 10 and 11 of Eul, and Article 3-2 of the Enforcement Decree was revised on September 15, 201, if a public official in contractual service (term system) is reappointed (term extension) without any separate recruitment procedure within the total available period (five years), he/she cannot be deemed a first appointment, and therefore, he/she is unable to subscribe to employment insurance at that time. Therefore, if three months have elapsed after the first appointment, a public official in charge of insurance, etc. is reappointed, even if he/she works for five years after the first appointment, he/she still suffers disadvantages

G) If the head of a relevant institution neglects his/her duty prescribed in the instant provision and a public official subject to insurance coverage is unable to subscribe to employment insurance, the relevant public official may claim damages against the State or local government, but this cannot be deemed as a direct remedy. Rather, opening a path for the said public official to subscribe to employment insurance is prompt, simple, and direct remedy. Moreover, even if the head of the relevant institution provides relief, it does not seem to seriously undermine the soundness of the insurance finance.

H) Comprehensively taking account of the above circumstances, it is reasonable to interpret the proviso of this case as follows: (a) where the head of the affiliated agency fails to confirm the intention of the public official subject to insurance coverage, or fails to file an application within three months from the appointment date, such as failing to confirm the public official’s intention to join the account; (b) where the public official subject to insurance coverage fails to file an application within the application period prescribed by the provision of this case due to reasons not attributable to the public official subject to insurance coverage, it is reasonable to interpret that the public official subject to insurance can file an application again within three months from the date when he becomes aware of such reasons; (c) the right to lead a life worthy of human dignity;

3) Whether the first disposition in this case is lawful

As seen earlier, in the case of the Plaintiff, the Defendant, the head of the affiliated agency, neglected his/her duty under the instant provision and did not confirm the Plaintiff’s intention to purchase the employment insurance, and three months have passed since the date of appointment. According to the evidence No. 8, the Plaintiff became aware of the same reason on or around June 2016, the instant application filed for employment insurance on July 20, 2016, which was within three months thereafter, was lawful as it was filed within the period of application. Nevertheless, the instant application for employment insurance was unlawful.

D. Sub-committee

Therefore, since the plaintiff's primary argument is reasonable, the first disposition of this case should be revoked, and as long as the plaintiff's primary claim is accepted, the plaintiff's primary claim shall not be judged further.

3. Conclusion

Therefore, the plaintiff's primary claim shall be accepted with due reason and shall be decided as per Disposition (the plaintiff's previous lawsuit against the head of the employment center of Jeju Special Self-Governing Province shall be considered to have been withdrawn pursuant to Article 14 (6) and (5) of the Administrative Litigation Act as the defendant was corrected in the trial as seen above, so the judgment of the court of first instance became null and void).