Plaintiff (Law Firm aiming at Law, Attorneys Kim Burial-hee et al., Counsel for the plaintiff-appellant)

The Head of the Seoul Regional Employment and Labor Office Seoul Gangnam District Office

Seoul Administrative Court Decision 2017Guhap6084 decided October 19, 2017

April 18, 2018

1. The part against the plaintiff falling under the following among the judgment of the first instance shall be revoked:

On March 8, 2017, the Defendant’s disposition on the payment of childcare leave benefits to the Plaintiff is revoked.

2. The total cost of a lawsuit shall be borne individually by each party.

1. Purport of claim

On March 8, 2017, the Defendant’s disposition of site pay for childcare leave benefits and the disposition of site pay for maternity leave benefits to the Plaintiff shall be revoked.

2. Purport of appeal

The decision is as follows (the plaintiff sought the same judgment as the cancellation of the entire judgment of the first instance and the purport of the claim. The plaintiff voluntarily withdrawn the appeal concerning the cancellation of the claim for the cancellation of the payment of maternity leave benefits upon filing an application for modification of the purport of the appeal and the grounds for appeal on April 18, 2018).

1. Details of the disposition;

A. On October 21, 2014, the Plaintiff, who was working for the Korean Climate Group, was given maternity leave from October 1, 2014 to December 29, 2014, and used the childcare leave for a period from October 1, 2014 to December 29, 2014. Accordingly, the Plaintiff was granted childcare leave for a period from December 30 to December 29, 2015.

B. On February 24, 2017, the Plaintiff applied for payment of childcare leave benefits during the above period of childcare leave, and on March 3, 2017, applied for payment of maternity leave benefits during the above period of maternity leave.

C. On March 8, 2017, the Defendant: (a) filed an application with the Plaintiff for the payment of maternity leave benefits after the lapse of 12 months from the end of the maternity leave; and (b) filed an application for the payment of childcare leave benefits after the lapse of 12 months from the end of the childcare leave; (c) rendered a disposition on the land level for childcare leave benefits (hereinafter “instant disposition”); and (d) on the

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

For the following reasons, the instant disposition rejecting the Plaintiff’s application for payment of childcare leave benefits shall be revoked as unlawful.

1) The nature of childcare leave and maternity leave are different from each other’s legal system, and the requirements for payment obligations under Articles 70(1) and 75 of the Employment Insurance Act are different.

2) In light of the fact that childcare leave benefits for public officials are paid without a separate application, it cannot be deemed that, notwithstanding the express provision of Article 70(1) of the Employment Insurance Act, for private workers, the duty of the Minister of Employment and Labor to pay childcare leave benefits arises only when a separate application is filed

3) Considering Article 36(2) of the Constitution that provides for the State’s duty to endeavor to protect maternity, and Article 32(4) of the Constitution that provides that female workers shall be granted special protection and shall not be discriminated against in terms of employment, wages, and working conditions, and the purport of the childcare leave system that is introduced to prevent the interruption of women’s career, it is reasonable to interpret that the extinctive prescription period of the right to claim childcare leave benefits is three years under Article 107 of the Employment Insurance Act, but Article 70(2) of the Employment Insurance Act that limits the period of application for childcare leave benefits to the extent of 12 months after the expiration of childcare leave benefits is merely a warning provision.

4) Therefore, as long as the Plaintiff satisfies all the requirements for payment of childcare leave benefits under Article 70(1) of the Employment Insurance Act, and the Defendant files a claim for childcare leave benefits before the lapse of the three-year statute of limitations, the Defendant shall pay

B. Relevant statutes

Attached Form 1 shall be as listed in attached Table 1.

C. Determination

1) The nature of entitlement to childcare leave systems and childcare leave benefits

A) The meaning 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 motherhood.Korea continues to have a low birth rate for the last two years, and the total birth rate in 2017 fell down with 1.05 persons, and supporting equal participation in childcare for work and family balance and sharing the burden of fostering and sharing the burden on the State and the society are tasks to be urgently implemented in order to prevent national re-entincing due to the lack of early aging and population due to low birth.

The childcare leave system under the former Equal Employment Opportunity (amended by Act No. 3989, Dec. 4, 1987) was established for working women under Article 32(4) of the Constitution that provides special protection for women's work and Article 36(2) of the Constitution that provides for the State's duty of protecting maternity. However, the current childcare leave system has the social functions such as encouraging women's participation in the labor market, encouraging women's work and family-family balance, encouraging women's childbirth and child welfare, encouraging women's family responsibility and real achievement of gender equality (see Constitutional Court en banc Decision 2005Hun-Ma1156, 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, the problem of low birth by avoiding the childbirth itself cannot be deepened. 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 benefits system

A private worker’s childcare leave is based on Article 19 of the Equal Employment Opportunity and Work-Family Balance Assistance Act (hereinafter “Equal Employment Opportunity Act”). A worker shall apply for childcare leave to an employer for a period of not more than eight years of age or not more than one year to raise his/her children in the second grade or lower pursuant to the above provision, and the employer shall permit the childcare leave except as otherwise prescribed by Presidential Decree. The same shall apply to the requirements of childcare leave for public officials 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 childcare leave benefits for private workers, and Article 70 of the Employment Insurance Act and its subordinate statutes separately from the application for childcare leave benefits to receive childcare leave benefits. In this regard, there is a difference between the public officials who are to receive childcare leave benefits without any separate application procedure on childcare leave allowances (public officials’ childcare leave allowances are governed by the Regulations on Public Officials’ Allowances, etc. or the Regulations on Local Public Officials’ Allowances, etc.).

The above difference between a public official and a private employee concerning the application procedure for childcare leave benefits is different from the person who is entitled to the permission for childcare leave for a private employee and the person who manages the financial resources for the payment of childcare leave benefits (the State and the Ministry of Employment and Labor). It is not inevitable under the current system. However, in interpreting and applying the provision on the right to receive childcare leave benefits for a private employee, the above right to receive childcare leave benefits should not be considerably poor in comparison with the right to receive childcare leave benefits for a public official, or should not be significantly poor in terms of the requirements for the existence or exercise of each right.

C) Character of entitlement to childcare leave benefits

The Employment Insurance Act regulates the payment of childcare leave benefits. 2) The kinds and contents of the employment insurance benefits are stipulated by law, the amount and collection method of the insurance premiums are stipulated by law, so that the parties can not individually choose the contents of the insurance relationship, and if the parties meet the requirements of the parties, the administrative agency's obligation to pay occurs, and if the request for payment is rejected, the administrative litigation can be contested.

According to Article 6 of the Employment Insurance Act and Article 13 of the Act on the Collection of Insurance Premiums, etc. for Employment Insurance and Industrial Accident Compensation Insurance, childcare leave benefits and maternity leave benefits are required to be paid from the account that pays unemployment benefits out of the Employment Insurance Fund, and its financial resources are based on the insurance premium that the employer and the employee paid half of the unemployment benefits. Article 70(1)1 of the Employment Insurance Act states “The insured unit period under Article 41 prior to the commencement date of childcare leave is at least 180 days in total,” i.e., a certain amount of “self-help” as one of the requirements for the payment of childcare leave benefits. A worker pays a certain percentage of insurance premium out of his/her own wage as the financial resources for unemployment benefits, and the childcare leave benefits are also paid from this financial resources. Since all workers do not take childcare leave and are different in the number or period of childcare leave, it has the characteristics that the principle of benefits

Furthermore, the entitlement to childcare leave benefits belongs to the beneficiary and is available for an individual's interest, and the childcare leave benefits contribute to securing the survival of the beneficiary as well as his/her family.

Therefore, the right to receive childcare leave benefits is a subjective public right of an individual employee, and the nature of social security benefits, one of the social fundamental rights, and the characteristic of property rights, are inseparably mixed. As long as the right to receive childcare leave benefits is a social security right, the legislative discretion exists in determining the specific contents of the right to receive childcare leave benefits, while the right to receive childcare benefits also has the nature as a property right, so the interpretation that excessively strict interpretation or restriction of the requirements of rights

2) Provisions on the Employment Insurance Act on childcare leave benefits

A) Article 70(1) of the Employment Insurance Act - Requirements for entitlement to childcare leave benefits

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

In light of the fact that Article 70(2) of the Employment Insurance Act provides that the application for childcare leave benefits can be made starting from the “one month after the commencement of childcare leave benefits”, Article 107(1) of the Employment Insurance Act does not provide for the starting point of the extinctive prescription for the entitlement to childcare leave benefits, and Article 107(2) of the Employment Insurance Act provides that the extinctive prescription period shall be interrupted upon the application for childcare leave benefits, and Article 107(2) of the Employment Insurance Act provides that the extinctive prescription period shall be interrupted even before the application for childcare leave benefits shall be in advance. In light of the fact that the entitlement to childcare leave benefits arises after one month from the commencement date of childcare leave benefits, and the entitlement to childcare leave benefits arises for each month after the expiration of the period of childcare leave benefits, and each three-year extinctive prescription period shall expire

(On the other hand, there may be room for asserting that the right to claim payment of childcare leave benefits arises only when the Plaintiff applied for childcare leave benefits in accordance with the provision of the application period, and that the extinctive prescription will run three years thereafter. However, the purport of the head of an employment security office, after reviewing the requirements, restrictions on payment, etc. under the relevant Acts and subordinate statutes, giving specific rights by making a decision on payment of childcare leave benefits, is that the employee cannot immediately seek confirmation of rights or payment of benefits through litigation without any application, and if the Defendant refuses to apply for childcare benefits, it shall not be deemed that there is no basic right right that is the subject of extinctive prescription before applying for

B) Article 107 of the Employment Insurance Act - The term “application” on the grounds of extinctive prescription and interruption thereof.

The main text of Article 107(1) of the Employment Insurance Act provides, “The right to receive or return subsidies, unemployment benefits, child-care leave benefits, or maternity or paternity leave benefits under Chapters III through V expires if it is not exercised for three years.” However, with respect to “subsidies” and “vocational benefits” under the Employment Insurance Act, there is no provision that sets the period of application for a short-term period than the aforesaid extinctive prescription period.

Meanwhile, Article 107(2) of the Employment Insurance Act provides that Article 113 of the Industrial Accident Compensation Insurance Act shall apply mutatis mutandis to the interruption of extinctive prescription. The main text 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 claim 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 (3) shall be paid at the request of a beneficiary." However, there is no separate provision regarding the period for requesting various insurance benefits.

C) Article 70(2) of the Employment Insurance Act

Article 70(2) of the Employment Insurance Act provides that “A person who intends to receive childcare leave benefits under paragraph (1) shall file an application within 12 months from the first month after the commencement date of childcare leave, within 12 months from the expiration date of childcare leave” (hereinafter referred to as “application period”).

However, the Employment Insurance Act does not have any special provision 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. It is a problem of harmonious interpretation between extinctive prescription provision of Article 107(1) of the same Act and extinctive prescription provision

3) Comparing with maternity leave benefits

A) Employment Insurance Act for maternity leave

Article 75 of the Employment Insurance Act requires the affirmative requirement for the payment of maternity leave benefits, ① the insured was given a maternity leave, miscarriage or stillbirth leave under Article 74 of the Labor Standards Act pursuant to Article 18 of the Equal Employment Opportunity Act, ② the insured unit period under Article 41 prior to the end date of the leave is at least 180 days in total, and ③ the application is made within 12 months after the beginning date of the leave from one month to 12 months after the end date of the leave.

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

B) The amended history of the Employment Insurance Act on childcare leave benefits and maternity or paternity leave benefits

The history of the amendment of the Employment Insurance Act on childcare leave benefits and maternity or paternity leave benefits is as shown in the attached Form 2. When the Employment Insurance Act was amended by Act No. 6509 on August 14, 2001, Article 55-2 and Article 55-7 of the Employment Insurance Act were newly established, and the same purport as those of Article 70 or 75 of the Employment Insurance Act currently implemented. Provided, That the main text of Article 55-2(1)3 of the former Employment Insurance Act provides that “The applicant shall file an application within six months after the beginning date of childcare leave as the requirement for payment of childcare leave benefits,” and the main text of Article 55-7(2) of the former Employment Insurance Act provides that “The applicant shall file an application within six months after the expiration date of the maternity leave.”

With the amendment of the Employment Insurance Act by Act No. 7565 on May 31, 2005, the period of application was extended to apply for the “within 12 months” from each end of the childcare leave or the maternity leave, and even when the insured received a miscarriage or stillbirth leave, it was added to the case where the insured received a miscarriage or stillbirth leave in Article 55-7 of the former Employment Insurance Act so that he/she would pay the same benefits as when he/she received a maternity leave. As the whole amendment was made on May 11, 2007 by Act No. 8429 on May 11, 2007, the childcare leave benefits were stipulated in Article 70, the maternity leave benefits, etc. are stipulated in Article 75, the childcare leave benefits, etc. are stipulated in Article 75, and the childcare leave benefits provisions

After July 21, 201, the Employment Insurance Act revised on July 21, 201, thereby creating a new 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 for a worker who reduces working hours instead of temporary retirement under Article 73-2. The same system has deleted the provision of Article 70(1)3 regarding the period of application for temporary retirement benefits from the same system, and newly establishing Article 70(2).

C) Interpretation of the legislative intent with respect to the amendment of law

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, and it is difficult to find a clear legislative data that shows the background of the amended provisions of Article 70 of the Employment Insurance Act as in the present.

In general, all laws, to the extent that they are not to change the nature of legal provisions to the extent that they are reasonably interpreted and urge one legislative institution to amend laws, etc., which adapts to social phenomenon prior to the amendment of laws, are belonging to the duties of the court. It is an unabrupted attitude that, even though they are aware that customary interpretation and application of the provisions of the law behind it would result in unfair consequences, they must be followed as they are until the legislative institution such as the amendment of the law takes place (see Supreme Court en banc Decision 95Da36466, Apr. 23, 1998; see Opinion concurring with the Majority Opinion).

Even if the legislative intent of the legislative amendment is not clear, it is necessary to supplement the legislative intent by linking the basis and purpose of each system and a series of processes in which the amendment was made, and by interpreting it to fit the changed social phenomenon.

D) The difference between childcare leave benefits and maternity leave benefits

(1) The former Employment Insurance Act on the requirements for childcare leave benefits and maternity or paternity leave benefits is identical, but the current Employment Insurance Act, as shown in the attached Table 2, excludes childcare leave benefits from the requirements and excludes them from the requirements, while the former Employment Insurance Act still provides for one of the requirements for application period for maternity leave benefits.

In light of the purpose and function of the above two benefits, there seems to be no reasonable ground for discrimination. However, unlike the language and text of the provision on childcare leave benefits, it cannot be a ground for applying the legal status of both rights to receive maternity leave benefits to the lower level by interpreting the requirements for benefits as in the same manner as the provision on requirements for maternity leave benefits.

(2) Rather, a maternity leave is naturally occurring on the basis of the fact of “childbirth” and the duty to grant a 60-day maternity leave from the date when the Labor Standards Act was established in 1953 to the employer as “child-free leave” was stipulated in Article 74(3) of the Labor Standards Act. As the period of leave thereafter extends to 90 days, Article 18 of the Equal Employment Opportunity Act provides for the State’s duty to provide support and sets forth the extended period’s benefits under Article 18 of the Equal Employment Opportunity Act, rather than the employer, the provision on maternity leave benefits was newly established under Article 55-7 of the Employment Insurance Act in 2001, and the provision on childcare leave benefits (within one year) is not prescribed under other Acts, and in the case of a private employer, 60-day maternity leave is obligated to provide for 60-day maternity leave. However, in light of the fact that child-care leave benefits are operated without pay or paid, it is reasonable to deem that the private employee’s entitlement to child-care leave benefits depends very absolutely on employment insurance.

4) Interpretation of Article 70(2) of the Employment Insurance Act

A) In the exercise of a specific claim, the exclusion period may be set aside separately from the extinctive prescription, and both parties may compete (see Supreme Court Decision 201Da10266, Oct. 13, 2011; 201; 2011Da10266, Oct. 13, 201; 201; 201Da102666, Oct. 13, 201). However, in order to set the exclusion period, even if one party’s rights are sacrificed for the purpose of setting the extinctive prescription period, it is necessary to ensure the stability of prompt legal relations between the opposing parties. As regards the instant case, the benefit of “the rapid stability of legal relations” that should be promoted by limiting the application period of the beneficiary’s benefits to a short-term period than the extinctive prescription period between the beneficiary and the country (the Ministry of Employment and Labor and the head

In addition, applying the three-year extinctive prescription to the right to receive benefits, etc. already paid on the ground of illegal receipt of benefits, etc., the application of the one-year extinctive prescription is in fact contrary to equity.

B) The payment of childcare leave benefits should be decided through a review of whether a beneficiary’s application satisfies the requirements by the head of the employment security office, and the payment of childcare leave benefits calculated by the head of the employment security office is made. However, such circumstances are insufficient to serve as the grounds for the argument that the extinctive prescription should be interrupted if a beneficiary files an application before the expiration of the extinctive prescription period, and that the extinctive prescription should be applied within the short-term period rather than the extinctive prescription period.

5) Judgment on the defendant's assertion

The Defendant asserts to the effect that Article 70(2) of the Employment Insurance Act provides that “The applicant shall file an application within the period of application” is able to secure the financial stability of the Employment Insurance Fund by guaranteeing the right to apply for benefits for a reasonable period of 12 months from the end of the period of childcare leave, taking into account the special nature of the childcare leave benefits as social security benefits.

However, in light of the purpose and purport of the childcare leave benefit system and the entitlement to childcare leave benefits, as seen earlier, have the property nature as well as the trust that at least one beneficiary does not extinguish his/her right within the statute of limitations, it is difficult to justify the purpose of securing the financial stability of the Employment Insurance Fund for the purpose of ensuring the financial stability of the Employment Insurance Fund.

6) Sub-decisions

In full view of the aforementioned circumstances and the relationship with the extinctive prescription provisions under Article 107 of the Employment Insurance Act, the “application period” under Article 70(2) of the Employment Insurance Act cannot be deemed as the exclusion period for exercising the right to receive childcare leave benefits, and the “application period” also cannot be deemed as the procedural requirements for the right to receive childcare leave benefits or the right to receive benefits, and it is reasonable to regard the application as a provision providing a decoration. State

The phrase “application” under Article 70(2) of the Employment Insurance Act is a procedure for receiving childcare leave benefits and grounds for suspending extinctive prescription, and it is reasonable to interpret the meaning of requesting early applications to achieve the purpose of the system, which is livelihood support during childcare leave, to the extent that the procedure does not proceed without filing an application with the relevant employment security office under the current system where the granting of childcare leave benefits and the payment of childcare leave benefits are dualized.

Therefore, it is obvious that the Plaintiff applied for childcare leave benefits within three years after the expiration of the extinctive prescription and still has the right to receive childcare leave benefits to the Defendant. Therefore, the Plaintiff’s assertion pointing this out has merit, and the Defendant’s disposition of this case, which the Plaintiff rejected the Plaintiff’s application on a different premise,

3. Conclusion

Therefore, the part of the plaintiff's claim seeking cancellation of the disposition of this case is justified, and since the part concerning the disposition of this case among the judgment of the court of first instance is unfair with different conclusions, the plaintiff's appeal is accepted, and this part of the judgment of first instance is revoked, and it is so decided as per Disposition by the assent of

(attached Form omitted)

Judges Park Jong-nam (Presiding Judge)

1) Therefore, it cannot be deemed that Article 70(2) of the Employment Insurance Act, which provides for a private employee to apply for childcare leave benefits, violated the principle of equality under the Constitution. Thus, the Plaintiff’s primary assertion among the Plaintiff’s motion for adjudication on the constitutionality of a law provision is rejected.

2) The purpose of the Employment Insurance Act is to ensure the prevention of unemployment, the promotion of employment, the development and improvement of the workers’ vocational abilities through the enforcement of employment insurance, the strengthening of the State’s vocational guidance and job placement functions, and the stabilization of workers’ livelihood and job-seeking activities by providing them with necessary benefits when they are unemployed, thereby contributing to the economic and social development of the economy. This objective is to protect motherhood, protect the vocational ability of working women, encourage women to participate in the labor market, and to promote women’s work and family balance between workplace and their families, encourage their childbirth and child welfare, and to share male’s family responsibility and to achieve substantial family equality.

3) Article 74 (Protection of Pregnant Women) (1) of the Labor Standards Act (1) An employer shall grant a pregnant woman 90-day maternity leave before and after her childbirth (120-day maternity leave if she is pregnant with at least two children at a time). In such cases, the period of leave shall be at least 45 days (60-day leave if she is pregnant with at least two children at a time) after her childbirth.

Note 4) Although a family judgment was made, the Seoul High Court Decision 2015Nu33853 decided August 31, 2015, which states that Article 70(2) of the Employment Insurance Act cannot be deemed a mandatory provision, or that it ought to be deemed a decoration provision, is identical to this decision.