(영문) 서울고등법원 2015.7.9. 선고 2015누36555 판결

On February 6, 2014, the Defendant’s disposition of rejecting the application for difference in childcare leave benefits made to the Plaintiff is revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's lawsuit is primarily dismissed, and the plaintiff's claim is dismissed in preliminary.

Reasons

1. Quotation of the first instance judgment

The reasoning of the court's reasoning on this case is that the disposition of this case is unlawful. The defendant's claim for the remainder of the amount calculated by subtracting the childcare leave already paid by the defendant from the ordinary wages calculated based on bonuses, long-term continuous service allowances, meal allowance, transportation subsidy, and transportation subsidy under the Labor Standards Act, as long as the points of the family customized welfare card do not correspond to ordinary wages under the Labor Standards Act, the defendant's claim for the remainder of the amount calculated based on the ordinary wages, including bonuses, long-term continuous service allowances, meal subsidy, transportation subsidy, customized welfare subsidy, etc., was erroneous in calculating the ordinary wages as the defendant's decision on childcare leave, and thus, the entire disposition of this case should be revoked, and it shall not be revoked by specifying only the remainder after deducting the childcare leave already paid by the defendant from the childcare leave calculated based on ordinary wages including bonuses, long-term continuous service allowances, meal subsidy, transportation subsidy, etc. under the Labor Standards Act.

2. Additional determination

A. The defendant's assertion

1) According to Article 70 of the Employment Insurance Act and Article 116(1) of the Enforcement Rule of the same Act, an application for temporary retirement for childcare should be made by preparing the required documents, such as the document verifying the written confirmation of temporary retirement for childcare, ordinary wages, etc., and the copy of the document verifying the receipt of money and valuables from an employer during the period of temporary retirement for childcare. However, on January 3, 2014, the Plaintiff did not provide the above required documents while filing an application for temporary retirement for childcare with the Defendant, and thus, the instant disposition rejecting the said application by the Plaintiff is lawful.

2) According to Article 70(2) of the Employment Insurance Act, a person who intends to receive childcare leave shall file an application for childcare leave within 12 months from the first month after the commencement of childcare leave. Since the Plaintiff’s childcare leave period from September 14, 2010 to September 13, 201, the date on which the Plaintiff may apply for childcare leave is until September 13, 2012. However, since the Plaintiff applied for childcare leave on January 3, 2014, the instant disposition rejecting the said application by the Plaintiff is lawful.

B. Determination

1) Determination on the first argument

In an appeal litigation seeking the revocation of an administrative disposition, a disposition agency may add or alter other grounds only to the extent that the grounds for the initial disposition are deemed identical to the basic facts (see Supreme Court Decision 2013Du26118, May 16, 2014). Since the original grounds for the disposition of this case, which the Defendant incurred, have already been paid the full amount of childcare leave for the Plaintiff’s period of childcare leave, the Defendant’s assertion that the aforementioned documents are incomplete is not included in the grounds for disposition of this case, but cannot be deemed identical to the original grounds for disposition of this case.

Even if not, according to Article 17(5) of the Administrative Procedures Act, Article 13 of the Civil Petitions Treatment Act, and Article 14 of the Enforcement Decree of the same Act, an administrative agency shall, without delay, demand the applicant to supplement the defective matters, such as lack of documents required for the application, and shall not immediately refuse the application without delay, even if the supplement is possible. Although the lack of documents asserted by the Defendant falls under a home where supplement is possible, there is no evidence to prove that the Defendant requested the Plaintiff to supplement the documents, and therefore, the Plaintiff did not have any evidence to prove that the instant disposition rejecting the Plaintiff’s application on January 3, 2014 was legitimate, the Defendant’s assertion that the instant disposition rejecting the Plaintiff’s application was legitimate is without merit.

2) Determination on the second argument

In light of the above legal principles, the defendant's above application period and argument were not included in the original reason for disposition of this case, and since the original reason for disposition and basic factual relations cannot be deemed identical, the defendant is not allowed to add the application period and reason as the reason for disposition.

Even if not, Article 107(1) of the Employment Insurance Act provides that the right to receive childcare benefits shall expire if it is not exercised for three years, and Article 107(2) of the Employment Insurance Act provides that the above extinctive prescription shall be interrupted by an application for childcare benefits. Thus, an application for childcare benefits may be filed before three years elapse from the last day of the childcare leave. On the other hand, Article 70(12) of the Employment Insurance Act, which provides that an application for childcare benefits shall be filed within 12 months from the first day of the childcare leave after the first day of the childcare leave, is merely a decoration provision.

On January 3, 201, 201, before the expiration of three years from September 13, 201, which was the last day of childcare leave, the Plaintiff filed an application for childcare leave of this case on January 3, 201, and therefore, the application for childcare leave of this case is lawful.

Therefore, we cannot accept this part of the defendant's argument.

3. Conclusion

Therefore, the plaintiff's claim is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed. It is so decided as per Disposition.