In a case where the head of a local government applied for employment insurance with the head of a local government at the time two years and nine months have passed after the date of the first appointment, but the head of a local government made a non-approval disposition against Gap on the ground that "the head of a local government shall not apply for employment insurance after the expiration of the period of application for three months from the first appointment date pursuant to Article 3-2 (2) of the former Enforcement Decree of the Employment Insurance Act" with respect to Gap, the case holding that the above disposition which rejected Gap's application for employment insurance within three months from the appointment date on the ground that the head of a local government neglected his/her duty and did not confirm Gap's intention to purchase employment insurance, and that Gap did not apply for employment insurance within three

Article 3-2 (2) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 27549, Oct. 18, 2016; hereinafter the same) to the head of a local government applied for employment insurance with the head of the local government when two years and nine months have passed after the date of the first appointment, but the head of the local government made a non-approval disposition on the ground that “A cannot apply for employment insurance after the expiration of the period of application for three months from the date of the first appointment.”

In full view of the various circumstances, interpreting the proviso of Article 3-2 (2) of the former Enforcement Decree of the Employment Insurance Act that "where a public official subject to subscription fails to file an application within the period of application prescribed in Article 3-2 of the former Enforcement Decree of the Employment Insurance Act due to reasons not attributable to the public official subject to subscription, such as failing to confirm his/her intention to join as a public official subject to subscription, or failing to file an application within three months from the appointment date, a public official subject to subscription may file an application again within three months from the date on which he/she becomes aware of such reasons, a public official subject to subscription may file an application again within three months from the date on which he/she becomes aware of such reasons," is interpreted in accordance with the constitutional norm, such as the right to a life worthy of human dignity, Article 34 of the Constitution that provides for the State's duty to endeavor to promote social security and social welfare, and three months have passed since the date of appointment because the head of local government failed to confirm his/her intention to subscribe to employment insurance by the public official Gap.

Article 10 subparagraph 3 of the Employment Insurance Act, Article 3-2 (2) of the former Enforcement Decree of the Employment Insurance Act (Amended by Presidential Decree No. 27549, Oct. 18, 2016)

Plaintiff (Attorney Kim Sung-hoon, Counsel for plaintiff-appellant)

Jeju Special Self-Governing Province Governor

Jeju District Court Decision 2017Guhap5502 decided April 25, 2018

September 19, 2018

1. The Defendant’s non-approval disposition against the Plaintiff on July 25, 2016 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

In the first instance judgment, the decision is revoked. In the first instance judgment, the non-approval disposition that the Defendant rendered against the Plaintiff on July 25, 2016 is revoked. In the first instance judgment, the decision that the Defendant rendered to the Plaintiff on December 6, 2017 was revoked (the Plaintiff filed the instant lawsuit against the head of the Jeju Special Self-Governing Province Employment Center at the first instance court, but the previous office was incorporated into the job and economic and trade bureau of Jeju Special Self-Governing Province on August 23, 2018 following the amendment of the Ordinance on the Establishment and Quota of Jeju Special Self-Governing Province, and the instant court corrected the Defendant at the head of the Jeju Special Self-Governing Province Employment Center as the Jeju Special Self-Governing Province Governor at the head of the Jeju Special Self-Governing Province Employment Center; hereinafter

1. Details of the disposition;

A. On October 21, 2015, the Plaintiff was employed as a part-time contracting officer of Jeju Special Self-Governing Province as of October 20, 2015, and began to work at the Jeju Special Self-Governing Province ○○○○○○○○○△△△△△△△△△△△△, and the Local Public Officials Act was amended to the effect that the contract-based public officials system was abolished and the system was introduced on December 12, 2013, and was converted into a general fixed-term official on the same day as the same date entered into force on December 12, 2013. Thereafter, the Plaintiff entered into an employment agreement with the Defendant on October 21, 2015, stipulating that the period of service from October 21, 2015 to October 20, 2017, and entered into an employment agreement again on October 21, 2017 to October 20, 2017.

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 “instant application”). On July 25, 2016, the Defendant issued a non-approval of purchase of employment insurance (hereinafter “instant first disposition”) on the ground that the Defendant cannot file an application for purchase of employment insurance after the lapse of the period of application for three months from the date of the first appointment under the foregoing provision.

C. On October 17, 2016, the Plaintiff filed a petition for review with an employment insurance examiner on the instant disposition, but was dismissed on January 3, 2017. On January 24, 2017, the Employment Insurance Review Committee filed a petition for reexamination, but was dismissed on March 8, 2017, and filed the instant lawsuit on June 7, 2017.

D. Thereafter, on October 21, 2017, the Plaintiff concluded a new appointment contract with the Defendant, arguing that the above appointment contract date should be deemed to be “the date of appointment” under Article 3-2(2) of the Enforcement Decree of the Employment Insurance Act, and filed an application for employment insurance with the Defendant on November 29, 2017. Accordingly, on October 21, 2017, the Defendant rendered a decision that the Plaintiff was ineligible for employment insurance policy (hereinafter “instant second disposition”) on December 6, 2017, on the ground that the Plaintiff was not newly appointed but the previous employment period was extended, and the above date cannot be deemed to be the date of appointment.

[Reasons for 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 “Enforcement Decree”) (hereinafter “instant provision”) stipulating the period of application for employment insurance as three months from the date of appointment shall be deemed to be the provision of decoration, and shall not be deemed to lose the right to apply for employment insurance upon the lapse of that period. Article 10 Subparag. 3 of the Employment Insurance Act does not impose any restriction on the period of application for employment insurance. As such, the instant provision does not stipulate that the right to apply for employment insurance shall not be lost after the lapse of three months beyond the scope of delegation by the upper law, and the instant provision limits the period of application 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. Moreover, since the head of an affiliated agency did not confirm whether to subscribe for employment insurance after the appointment of the Plaintiff, the Plaintiff’s application for employment insurance has been made more than three months since its appointment.

Ultimately, since three months have passed since the date of appointment of the Plaintiff, the instant application is deemed lawful, the instant disposition that rejected the Plaintiff’s application for membership is unlawful.

B. Relevant 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, the head of a affiliated agency who appoints a public official in extraordinary civil service or contract (term) shall immediately confirm his/her intention to purchase employment insurance (limited to unemployment benefits) within three months from the date of appointment to the public official who is confirmed to have an intention to purchase employment insurance (paragraph (1)) and apply for employment insurance to the head of the competent employment security office within three months from the date of appointment to the public official who is obligated to buy employment insurance (main sentence of Paragraph (2). Provided, That where a public official wishes to be a public official subject to insurance, he/she may directly apply for subscription for the same period

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 at will on July 20, 2016.

On December 10, 2013, the Defendant confirmed the Plaintiff’s intention to subscribe to employment insurance by inserting an official letter (No. 7) regarding the system and procedure for voluntary subscription to employment insurance for public officials, and confirmed the Plaintiff’s intention to subscribe to employment insurance even though the Plaintiff confirmed the above public notice. However, the above public notice argues that the Plaintiff did not express his intention to subscribe to employment insurance. However, it is not necessary to guide the public official subject to employment insurance who was first appointed as a public official subject to employment insurance in extraordinary civil service according to the amendment of the State Public Officials Act and the Local Public Officials Act, and it is not necessary to guide the public official subject to employment insurance to voluntarily subscribe to employment insurance 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

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 where the head of the affiliated agency did not confirm the intention of subscription of the public official subject to employment 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 employment insurance, it is interpreted that the public official subject to employment insurance can apply for subscription within three months from the appointment date, and that the period of application is too excessive (in the case of the above, there is no provision that relieves the public official subject to employment insurance), and the Defendant also made the instant disposition No. 1 under such interpretation.

C) Under the Constitution, all citizens shall have the right to a life worthy of human dignity (Article 34(1)), and the State shall have the duty to endeavor to promote social security and social welfare (Article 34(2)). The Employment Insurance Act introduced to perform the State’s above duties 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 their unemployment (Article 1). As a matter of principle, the same Act shall apply to workers at all businesses or places of business governed by the same Act, but public officials under the State Public Officials Act and the Local Public Officials Act are subject to the Public Officials Pension Act, so they are not subject to the application of the Public Officials Pension Act. However, in the case of public officials in extraordinary civil service and contractual service, there are little cases where the status guarantee is almost little and there are no benefits corresponding to unemployment benefits in the Public Officials Pension Act, and thus, public officials on March 21, 2008 and public officials on contractual and contractual services are also able to voluntarily subscribe to social security insurance for their own.

D) The instant provision, which provides for voluntary subscription procedures, 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 his/her intention to subscribe to the employment insurance. Therefore, in principle, an application for employment insurance is not a public official subject to subscription but a duty imposed on the head of the affiliated agency.

The instant proviso stipulates that a public official subject to subscription may directly apply for subscription within three months from the date of appointment. The purport of the instant proviso is to supplement the case where the head of the relevant agency neglects to confirm the intention of the public official subject to subscription or refuses to apply for subscription, in preparation for such cases where the head of the relevant agency neglects to confirm the intention of the public official subject to subscription or refuses to apply for subscription. Therefore, even if a public official subject to subscription can directly apply for subscription pursuant to the foregoing proviso, it is unreasonable to reduce or exempt the obligations of the head of the relevant agency prescribed in the instant provision or transfer the disadvantage to the public official subject to subscription due to neglect of the duty of the head of the relevant agency.

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, but 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 inconsistent with the spirit of the Constitution that prescribes the obligation to promote social security and social welfare of the State.

F) Furthermore, as seen in the evidence Nos. 10 and 11 of the Enforcement Decree, Article 3-2 A of the Enforcement Decree was amended on September 15, 201 as it requires an application for subscription within three months from the date of initial appointment, rather than “the date of appointment” as stated in the evidence No. 10 and 11. In addition, if a public official in contractual service (period of office) is reappointed (term extension) without any separate recruitment procedure within the total permissible period of employment (five years), he/she cannot be deemed the initial appointment, and therefore, he/she is unable to subscribe to employment insurance at that time. Therefore, if three months have elapsed after the initial appointment, a public official in charge of insurance, etc. is reappointed and has served for five years thereafter, he/she still

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: “Where the head of the affiliated agency fails to confirm the intention of the public official subject to subscription, or the public official expressed his intention of subscription, but fails to apply for subscription within three months from the appointment date, the public official subject to subscription may apply for subscription again within three months from the date on which he becomes aware of the reason for application prescribed in the provision of this case, such as where the public official subject to subscription fails to apply within the period of application due to reasons not attributable to the public official subject to subscription, it is reasonable to deem that the interpretation conforms to the constitutional norms, such as Article 34 of the Constitution, which provides for the right

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 prescribed in the instant provision and did not confirm the Plaintiff’s intention to purchase employment insurance, and three months have elapsed since the date of appointment. According to the Plaintiff’s evidence No. 8, the Plaintiff became aware of the same reason 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 on the grounds of its reasoning 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 deemed 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 first instance was invalidated).

[Attachment] Relevant Statutes: omitted

Judges Lee Jae-hoon (Presiding Judge) and Lee Jin-hun