2018Gudan57943 Action to revoke the revocation of the installment payment of childcare leave benefits

A

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

May 29, 2018

July 10, 2018

1. On January 15, 2018, the Defendant’s disposition to pay a site for childcare leave benefits to the Plaintiff is revoked. 2. The litigation cost is borne by the Defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff, while working in the Partnership B, was granted childcare leave from October 14, 2015 to July 31, 2016 and used.

B. On December 26, 2017, the Plaintiff applied for payment of childcare leave benefits to the Defendant for the aforementioned period of childcare leave.

C. On January 15, 2018, on the ground that the Defendant filed an application with the Plaintiff for payment of childcare leave benefits after the lapse of 12 months from the end of the childcare leave, the Defendant issued a disposition on the land level for childcare leave benefits (hereinafter “instant disposition”).

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 and 2, Eul evidence No. 2, and the purport of the whole pleadings

A. The plaintiff's assertion

1) The main text of Article 70(2) of the Employment Insurance Act, which provides that the period of application for childcare leave benefits is within 12 months after the date on which the child care leave expires, merely provides a decoration, and thus, the instant disposition on the ground that the aforementioned period has not been observed is unlawful.

2) The proviso to Article 70(2) of the Employment Insurance Act provides that a person who was unable to apply for childcare leave benefits for reasons prescribed by Presidential Decree from one month after the commencement of childcare leave to 12 months after the expiration of childcare leave shall file an application within 30 days after such reason ceases to exist. Accordingly, Article 94 of the Enforcement Decree of the Employment Insurance Act provides that “the disease or injury of the principal or his/her lineal descendant or his/her lineal descendant” under subparagraph 3 of the same Article. The Plaintiff’s father C received an operation under the name of his/her former bad faith as of February 15, 2016 and received a disability diagnosis for the period of disability until February 27, 2021. Since his/her mother received an operation under the name of his/her former bad faith, it should be deemed that the Plaintiff’s application period under the proviso to Article 70(2) of the Employment Insurance Act was unlawful as of November 20, 2012.

B. Relevant statutes

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

C. Determination

1) First, we examine the Plaintiff’s assertion that the main provision of Article 70(2) of the Employment Insurance Act (hereinafter “instant legal provision”) constitutes a decoration provision.

2) A statutory interpretation ought to be performed in a way that finds a concrete propriety within the extent that does not undermine legal stability. To this end, as far as possible, the statutory interpretation ought to be faithfully interpreted in light of the ordinary meaning of the language and text used in the statute, and further, the systematic and logical interpretation method that takes into account the legislative intent and purpose of the statute in question, the history of its enactment and amendment, harmony with the entire legal order, relationship with other statutes, etc. ought to comply with the request for statutory interpretation (see, e.g., Supreme Court en banc Decision 2011Du19239, Jul. 5, 2012).

In light of the aforementioned legal principles, considering all of the legislative intent and purpose of the childcare leave system as follows, the legal nature of the entitlement to childcare leave benefits, the language and structure of the relevant statutes including the instant legal provisions, and its amendment history, it is reasonable to regard the instant legal provision as not a mandatory provision, but a decoration provision.

A) The significance and function of the childcare leave system

Article 36 of the Constitution of the Republic of Korea provides that the State shall endeavor to ensure that the State is established on the basis of the dignity and gender equality of individuals and to protect maternity.Korea continues to have a low birth rate in the last half of a year, and the total birth rate in 2017 fell down with 1.05 persons, and the State and the society have to support the equal participation in childcare for work and family balance and share the burden of fostering with the burden of fostering. It is a task to be urgently implemented to prevent national re-employment due to the low birth rate and the shortage of population.The former Equal Employment Opportunity Act (Act No. 3989, Dec. 4, 1987) for working women.

The current childcare leave system has been grounded on Article 32(4) of the Constitution and Article 36(2) of the Constitution that provides for special protection for women's work and the State's duty to protect maternity. However, the current childcare leave system has the social function of encouraging women's participation in the labor market, promoting women's work and family relationship, encouraging childbirth and enhancing child welfare through supporting children's childcare, sharing of male's family responsibilities and achieving substantial equality in raising their families (see Constitutional Decision 2005Hun-Ma156, Oct. 30, 2008).

In the case of a private workplace, childcare leave is generally operated at a higher level, and an employee suffers from lack of economic difficulties during the period of childcare, and the economic burden is increased accordingly. If there is no appropriate economic support for the period of childcare, an employee shall take the application for childcare leave and further avoid childbirth itself, thereby promoting the problem of early low-income childbirth. Accordingly, the guarantee of entitlement to childcare leave benefits is an essential premise for the success of the childcare leave system and the improvement of the childbirth rate.

B) The childcare leave system and the childcare leave system for private workers are based on Article 19 of the Equal Employment Opportunity and Work-Family Balance Assistance Act (hereinafter “Equal Employment Opportunity Act”). A worker who files an application for childcare leave with an employer for a fixed period not exceeding one year to raise his/her children under the aforementioned provision, or for a fixed period not exceeding one year to the second grade or lower of elementary school, and the employer shall be allowed except as otherwise prescribed by the Presidential Decree. The same applies to the requirements for childcare leave for public officials as prescribed by the State Public Officials Act and the Local Public Officials Act.

On the other hand, the Employment Insurance Act provides for the requirements and procedures for the application of the childcare leave benefits for private workers. In order to receive the childcare leave benefits, the employee is required to apply the childcare leave benefits to the head of an employment security office in accordance with Article 70 of the Employment Insurance Act and its subordinate statutes, separate from the application for childcare leave benefits. In this regard, there is a difference between the public official who is entitled to the childcare leave benefits without any separate application procedure on the childcare leave benefits (the childcare leave benefits for public officials are governed by the "Rules on Public Officials' Allowances, etc." or the "Rules on Local Public Officials' Allowances, etc."). Such difference is, in the case of private workers, the person entitled to the childcare leave benefits (the business operator, the employer, the head of the employment security office delegated with the authority of the State, the Minister of Employment and Labor or the head of the employment security office, Article 70 (1) and Article 115 of the Employment Insurance Act, and Article 145 (1) 12 of the Enforcement Decree of the same Act.

C) Character of entitlement to childcare leave benefits

According to Article 6 of the Employment Insurance Act and Article 13 of the Act on the Collection of Insurance Premiums for Employment Insurance and Industrial Accident Compensation Insurance, childcare leave benefits are paid out of the account that pays unemployment benefits among the Employment Insurance Fund, and the financial resources of this account are derived from the insurance premium that the employer and workers paid half. Article 70(1)1 of the Employment Insurance Act provides that, “The insured unit period under Article 41 prior to the commencement date of childcare leave shall be at least 180 days in total,” i.e., a certain amount of child care leave benefits as one of the requirements for payment of childcare leave benefits. Furthermore, childcare leave benefits shall be attributed to the beneficiary and shall be available for personal interest, and the beneficiary shall contribute to securing his/her family’s survival as well as the beneficiary. Accordingly, childcare leave benefits are subjective public rights of an individual employee, which have the nature of social security benefits as well as property rights. However, in determining the specific contents of entitlement to social security benefits as long as the entitlement to childcare benefits has discretion, while the legislative body has the nature of property rights, and it should be strictly interpreted.

D) Details of the relevant provisions, such as childcare leave benefits, and history of enactment and amendment

(1) Article 70(1) of the Employment Insurance Act (the requirements for entitlement to childcare leave benefits) provides that (i) the child care leave under Article 19 of the Equal Employment Opportunity Act has been granted for at least 30 days (excluding the period overlapping with the period of 90 days a maternity leave under Article 74 of the Labor Standards Act) (main sentence of the same paragraph) and (ii) the insured unit period under Article 41 prior to the commencement date of childcare leave shall be at least 180 days in total (Article 41 subparagraph 1 of the same paragraph), and (iii) the insured spouse is not granted childcare leave for at least 30 days to the same child, or the reduction of working hours for a period of childcare under Article 19-2 of the Equal Employment Opportunity Act has not been implemented for at least 30 days.

(2) The main text of Article 107(1) of the Employment Insurance Act (hereinafter “application”) provides that “The subsidies prescribed in Chapters III through V of the Employment Insurance Act shall be granted. The right to receive unemployment benefits, childcare leave benefits, or maternity leave benefits shall expire if it is not exercised for three years.” However, with respect to “the subsidies” and “the unemployment benefits” under the Employment Insurance Act, the provision providing for the period of application for the short-term extinctive prescription rather than the above extinctive prescription does not seem to exist.

Meanwhile, Article 107(2) of the Employment Insurance Act applies mutatis mutandis to the interruption of extinctive prescription. The main sentence of Article 113(1) of the Industrial Accident Compensation Insurance Act provides that "the extinctive prescription under Article 112 (3) shall be interrupted by a request under Article 36(2)." Article 36(2) of the Industrial Accident Compensation Insurance Act provides that "All insurance benefits under Article 36(1) of the Industrial Accident Compensation Insurance Act (the same Act) shall be paid at the request of a beneficiary." However, there is no separate provision regarding the period for requesting various insurance benefits.

(3) The instant legal provision (main sentence of Article 70(2) of the Employment Insurance Act) provides, “A person who intends to receive childcare leave benefits under paragraph (1) shall file an application within 12 months from the beginning date of the childcare leave to the end date of the childcare leave” (hereinafter referred to as “period for filing an application”).

However, the Employment Insurance Act does not have any special provisions such as the exclusion of extinctive prescription when the application period provision is more preferentially applied than the extinctive prescription provision or the application period is not observed.

(4) Article 75 of the Employment Insurance Act (Requirements for a person entitled to maternity leave benefits) requires the active requirements for the payment of maternity leave benefits to ① The insured under Article 18 of the Equal Employment Opportunity Act to receive maternity leave or miscarriage or stillbirth leave under Article 74 of the Labor Standards Act, ② The total insured period under Article 41 prior to the termination date of leave is at least 180 days in total, and ③ the application is required to be made within 12 months after the beginning date of leave from one month after the commencement date of leave.

The extinctive prescription provisions of Article 107 (1) of the Employment Insurance Act shall also apply to maternity leave benefits.

(5) The amended history of the Employment Insurance Act on childcare leave benefits and maternity or paternity leave benefits, including the history of the revision of the Employment Insurance Act on childcare leave benefits and maternity or paternity leave benefits, is as shown in the attached Table 2. The aforementioned amended Act on August 14, 2001 as Act No. 6509 on August 14, 2001 stipulated the requirements similar to those of Article 70 or 75 of the Employment Insurance Act currently implemented when the Employment Insurance Act was newly established as Act No. 6509 on August 14, 201. However, the main text of Article 55-2(1)3 of the former Employment Insurance Act stipulates that “The applicant shall meet the requirements to pay childcare leave benefits within six months after the date of commencement of childcare leave,” and the main text of Article 55-7(2) of the former Employment Insurance Act stipulates that “The applicant shall apply within six months after the date of termination of maternity leave.”

With the amendment of the Employment Insurance Act by Act No. 7565 on May 31, 2005, the period of application was extended within 12 months from each end of the childcare leave or the post-delivery leave. As the whole amendment was made on May 11, 2007 by Act No. 8429 on May 11, 2007, childcare leave benefits were prescribed in Article 70, and childcare leave benefits were prescribed in Article 75, and the provisions on childcare leave benefits were applied mutatis mutandis as they are on maternity leave benefits, etc.

After the revision of the Employment Insurance Act on July 21, 201, Article 73-2 of the Employment Insurance Act newly established a salary for reduction of working hours for a period of childcare to compensate for the reduced amount of income due to the reduction of working hours on behalf of a worker who reduces working hours instead of a temporary retirement for childcare. The same system was the same as the provision, and Article 70(1)3 of the Employment Insurance Act newly established and newly established Article 70(2) of the same Act. In other words, Article 70(1) of the Employment Insurance Act amended by Act No. 8429, May 11, 2007; “The Minister of Employment and Labor shall pay childcare leave benefits if all of the following requirements are met.” Article 70(1) of the same Act provides that “The Minister of Employment and Labor shall apply for childcare leave benefits within 12 months after the date of commencement of the temporary retirement leave.” However, Article 70(1)3 of the same Act provides that “The period of application is one of the requirements for maternity leave.”

E) Interpretation of the legal provisions of this case

(1) As above, the Employment Insurance Act has been revised in the direction of expanding the period of application and scope of application for childcare leave benefits and maternity leave benefits. In particular, the amended Employment Insurance Act does not require that the application should be made within the period of application for childcare leave benefits, unlike maternity leave, in cases of childcare leave benefits. It is reasonable to view this as a result of the legislator’s decision to ensure the substantial right to receive childcare leave benefits for private workers. In other words, the legal provision of this case, where childcare leave benefits are granted and childcare leave benefits are transferred to the current system where childcare leave benefits are transferred, shall not proceed without the procedure to the head of an employment security office, and it shall be noted that the legal provision of this case has the meaning of the procedure for receiving childcare leave benefits and the grounds for suspending extinctive prescription under Article 107 of the Employment Insurance Act.

(2) The Defendant asserts that the provision of Article 70(2) of the Employment Insurance Act provides that “the applicant shall apply within the period of application” is to ensure the right to apply for benefits for a reasonable period of 12 months from the end of the childcare leave, taking into account the special nature of the childcare leave benefits as social security benefits, and to ensure the financial stability of the Employment Insurance Fund and to stabilize legal relations as to childcare leave benefits as soon as possible by limiting the period of application. Therefore, the instant legal provision ought to be construed

However, the purpose and purport of the childcare leave benefit system, and the right to receive childcare leave benefits, as seen earlier, are holding property rights as well. Article 107(1) of the Employment Insurance Act provides that the extinctive prescription period of the right to receive childcare leave benefits shall be three years. In order to prevent the exercise of rights in cases where the period of application is too excessive, it should be necessary to ensure stability in prompt legal relations between the opposing parties even if one party sacrifices one party’s rights. However, in order to manage unemployment benefits accounts without any contribution to raising a certain amount of leisure time and its financial resources, it should not be considered that the State (the Ministry of Employment and Labor and the head of the employment security office) should promote by limiting the period of application for childcare leave benefits to a short-term period than the extinctive prescription period, or that the defendant’s right to receive childcare leave benefits is not extinguished at least, and that the period of application for childcare leave benefits should not be denied within the period of extinctive prescription period, and that the defendant’s right to receive childcare leave benefits should not be denied under Article 70(1) of the Employment Insurance Act.

3) The Plaintiff’s application for childcare leave benefits to the Defendant within three years after the expiration of the extinctive prescription is apparent in fact and still has the right to receive childcare leave benefits to the Defendant. Therefore, the Plaintiff’s assertion pointing this out is with merit, and the Defendant’s disposition that did not accept the Plaintiff’s application on a different premise is unlawful without having to further examine the remainder of the Plaintiff’s assertion.

3. Conclusion

The plaintiff's claim is reasonable, and it is so decided as per Disposition.

Judges Kim Gin-young

1) In order to obtain the protection of property rights under the present law, rights under public law are reverted to the subject of rights and used for the benefit of an individual.

be obtained by labor, investment, or special sacrifice of the subject of rights, not by the unilateral benefit of the State, and not by the unilateral benefit of the State.

Such benefits shall be equivalent to household effects, and shall be such as those which contribute to securing the survival of the recipients (the Constitutional Court Decision 200 June 29, 200).

See Supreme Court Decision 99HunMa289 decided Feb. 2, 199

2) Maternity leave is defined as 'Maternity leave' since the enactment of the Labor Standards Act in 1953, and an employer shall be granted a paid leave for 60 days.

At present, the obligation is stipulated in Article 74 of the Labor Standards Act, and the period of leave thereafter is extended to 90 days, equal employment for both genders.

In Article 18 of the Act, the provision of the State's duty to provide support for the extended period of time is not the employer but the Employment Insurance Fund.

Accordingly, the provision on maternity leave benefits was newly established in Article 55-7 of the Employment Insurance Act in 2001, and for the period of childcare leave (within one year).

Unless prescribed above in the Act, and in the case of private business owners, it is mandatory to grant a paid maternity leave for 60 days, while in the case of childcare leave, it is mandatory.

In most cases, the amount of benefits is significantly low even if it is operated or paid at a unpaid level, and the entitlement to childcare leave benefits for private workers is high.

As there are almost absolute dependence on employment insurance, maternity leave benefits and childcare leave due to the requirements for entitlement from employment insurance resources.

Maternity leave, which has been regulated by similar contents and systems, can be seen as a reasonable discrimination.

Unlike the language and text of the legal provision of this case, the fact that the application for payment of benefits is still required to be made within the application period is still stipulated.

By interpreting the requirements for maternity leave benefits as in the same manner as the provisions on the requirements for maternity leave benefits, the legal status of the entitlement to the two benefits shall be balanced.

No reason can be the argument.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.