(영문) 서울고등법원 2017.5.11. 선고 2016누81972 판결

The court's explanation on this part is the same as the corresponding part of the reasoning of the judgment of the court of first instance in addition to using the "period of request" of No. 2 of the judgment of the court of first instance No. 12 as "period of request". Thus, this part of the reasoning of the judgment of the court of first instance is cited in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of

2. Whether the instant disposition is lawful

A. As to the initial date of the application period for childcare leave benefits

1) The plaintiff's assertion

Since the Plaintiff started the secondary childcare leave again within 12 months after the end of the primary childcare leave, the Plaintiff’s period of payment of childcare leave benefits, the Plaintiff’s childcare leave more than two times shall be deemed to continue, and the period of payment of childcare leave should be calculated from the end of the secondary childcare leave.

In addition, with respect to childcare leave benefits for the remaining period during the first time of childcare leave, the Plaintiff’s application for childcare leave benefits is delayed for the remainder of the first time of childcare leave by receiving wrong information and trust. Nevertheless, the instant disposition dismissing the Plaintiff’s application on the ground that the application period was too excessive, or is unlawful, against the relevant laws and regulations or against the principle of good faith or the principle of good faith.

2) Determination

A) In accordance with the relevant provisions, such as the Act on the Equal Employment Opportunity, Work-Family Balance Assistance, and Employment Insurance Act as stated in the attached “related Acts and subordinate statutes,” an employee may apply for childcare leave for each child and receive childcare leave benefits for each child. Thus, the requirements for granting childcare leave benefits, including the requirements for granting childcare leave or the period of application, should be separately determined for each child. Therefore, the Plaintiff’s period of application for childcare leave benefits should also be calculated from the date of the first date of childcare leave, and there is no ground to deem that the second date of childcare leave should be calculated.

B) As acknowledged earlier, although the Plaintiff applied for childcare leave benefits for the period from January 15, 2013 to March 14, 2013 during the first childcare leave on March 26, 2013 (two months) and received childcare leave benefits, filing an application for payment of childcare leave benefits for the remaining period from March 15, 2013 to January 14, 2014 during the first childcare leave period (ten months) is deemed to have been on June 30, 2015 when the second childcare leave period expires, but solely on such circumstance, it is difficult to recognize that the employee of the Busan Northern Northern Employment Center, who is an employee of the Defendant, applied for payment of childcare leave benefits within one year after the expiration of the second childcare leave period, and thus, it is difficult to recognize that the Plaintiff did not have any wrong statement on the purport that “the payment of childcare leave benefits was made within one year after the expiration of the new childcare leave period,” and thus, it cannot be deemed to have violated the Plaintiff’s trust in the instant case.

C) The Plaintiff’s assertion on this part is without merit.

(b) Whether the period of application for temporary retirement benefits has expired;

1) The plaintiff's assertion

Even if the Plaintiff deemed to have filed an application for payment of childcare leave benefits more than 12 months after the expiration of the first childcare leave, Article 107 of the Employment Insurance Act provides that the extinctive prescription of the right to claim payment of childcare leave benefits shall be three years. Thus, the instant disposition that rejected the Plaintiff’s application for childcare leave benefits prior to the expiration of the extinctive prescription is unlawful.

2) Determination

A) As indicated in the “relevant Acts and subordinate statutes”, Article 70(1) of the Employment Insurance Act provides for the requirements for payment of childcare leave benefits under Article 70(1) and Article 70(2) main text of the same Act provides, “Any person who intends to receive childcare leave benefits under paragraph (1) shall file an application within 12 months from the first month after the date childcare leave begins.” (hereinafter referred to as “instant provision,” and the above period is referred to as “application period.” In full view of the content of the relevant Acts and subordinate statutes, such as the Employment Insurance Act, the legislative intent and amendment process, the form and structure thereof, and the meaning and nature of the childcare leave benefits, etc., the instant provision provides procedural requirements for receiving childcare leave benefits. The instant provision satisfies each of the requirements under Article 70(1) of the Employment Insurance Act among the insured, and can only be paid to the person who has filed an application for childcare leave benefits within the application period prescribed under the instant provision, and thus, the application for childcare leave benefits cannot be interpreted as a site payment disposition by an administrative agency.

(1) Article 9 of the Framework Act on Social Security provides that “All citizens shall have the right to receive social security benefits (hereinafter referred to as “social security benefits”) as prescribed by social security-related Acts and subordinate statutes.” Thus, determination of the existence or scope of entitlement to social security benefits can be said to be “social security-related Acts and subordinate statutes.” Meanwhile, the Employment Insurance Act provides that as part of the social insurance system, where reasons such as the stabilization of workers’ livelihood and the promotion of job-seeking activities, etc. arise, the Employment Insurance Act provides as a part of the national insurance system to provide relief by allocating the burden to many people through national insurance technology. Although the child care leave benefits corresponding to social security benefits and maternity leave benefits (which was called “ initial maternity leave benefits” but whose name was changed by amendment; hereinafter referred to as “maternity leave benefits”) are mandatory provisions in such Acts and subordinate statutes, and the existence or scope of entitlement is determined as prescribed by the Employment Insurance Act. According to the above Acts and subordinate statutes, the payment of child care leave benefits and maternity leave benefits shall be made to the head of the Employment Security Office (see the Employment Insurance Policy Office’s.

(2) Article 5-2 of the Employment Insurance Act (hereinafter “former Employment Insurance Act”) was newly established on August 24, 200 as well as the payment of childcare leave benefits. Article 55-7 of the same Act provides that childcare leave benefits shall be similar to those of current Article 70 or 75 of the Employment Insurance Act, and Article 55-2(1)3 of the same Act provides that the same provision shall apply for childcare leave benefits within 6 months after the first day of the child care leave benefits and within 7 months after the first day of the above provision (However, Article 55-2(1)3 of the former Employment Insurance Act provides that the same provision shall apply for childcare leave benefits within 30 days after the first day of the above provision. The same provision shall apply for childcare leave benefits as prescribed by the Presidential Decree, and the same provision shall apply for childcare leave benefits within 20 days after the first day of the above provision. The same provision shall apply to the second day after the second day of the above provision under the same provision.

As seen earlier, the procedural requirements are likely to ensure the financial stability of the employment insurance fund by guaranteeing the right to apply for benefits for a reasonable period of 12 months, which is 12 months from each end date, in consideration of the special nature of childcare leave benefits and maternity leave benefits as social security benefits provided by the social insurance system as well as maternity leave benefits.

(3) Article 107(1) of the Employment Insurance Act provides that “The extinctive prescription period shall expire if the right to receive childcare leave benefits has not been exercised for three years.” Article 107(2) of the same Act provides that the extinctive prescription period shall be interrupted upon application of childcare leave benefits by the beneficiary. In order for the beneficiary to receive childcare leave benefits as seen earlier, the procedural requirements, such as “the person who has to apply for childcare leave benefits within the application period,” should also meet the requirements under Article 70(1) of the Employment Insurance Act. Since a beneficiary who fails to apply for childcare leave benefits within the above application period and fails to meet the requirements, there is no room to apply the above provision on extinctive prescription after the application period expires. On the other hand, where the beneficiary satisfies all the requirements due to legitimate application period, etc., the above provision on the extinctive prescription period can only be interpreted as one of the grounds for suspending the extinctive prescription period. As seen earlier, a decision to pay childcare leave benefits through examination of whether the beneficiary’s above application satisfies the requirements under the head of the Employment Insurance Insurance Act.

B) Based on the foregoing legal doctrine, the health team, and the Plaintiff’s application for payment of childcare leave benefits to the Defendant on June 30, 2015, which was 12 months after January 14, 2014, which was the date of the first childcare leave, from January 14, 2014, which was 12 months after the date of the first childcare leave. As such, the instant disposition that the Defendant rejected the Plaintiff’s application on the grounds of the period of application is justifiable.

The plaintiff's assertion on this part is without merit.

3. Conclusion

Therefore, the disposition of this case is legitimate, and the plaintiff's claim for revocation is dismissed as it is without merit, and the judgment of the court of first instance, which differs from this conclusion, is unfair, and the plaintiff's claim is dismissed. It is so decided as per Disposition.