(영문) 부산지방법원 2014.8.28.선고 2014구합1582 판결

A. On July 13, 201, the Plaintiff became a member of the Korea Workers’ Compensation and Welfare Service and gave birth to his/her child, and the Plaintiff was granted childcare leave (hereinafter referred to as “instant childcare leave”) from October 17, 201 to October 16, 201, which was after the expiration of the period of leave before and after childbirth (from July 6, 2011 to October 3, 201).

B. At the beginning of the instant childcare leave, the Plaintiff’s occupational class and salary class were class 12 of class 5 in general service.

C. The Plaintiff filed an application for temporary retirement for childcare with the Defendant before and after the period of temporary retirement for childcare as follows. The Defendant calculated KRW 1,698,000, which is the sum of the Plaintiff’s basic salary and qualification certificates out of the Plaintiff’s wage, as ordinary wage. Pursuant to Article 95 of the Enforcement Decree of the Employment Insurance Act, KRW 577,620, which is an amount limited by 15% of the remaining payment, out of the ordinary wage’s 40%, pursuant to Article 95 of the Enforcement Decree of the Employment Insurance Act.

11.1. During twelve occasions, payments have been made as follows:

D. On April 23, 2014, the Plaintiff filed an application with the Defendant for payment of the difference between bonuses, long-term continuous service allowances, meal allowance, transportation subsidy, and customized welfare cards, calculated based on which the prescribed amount was included in ordinary wages, and the aforementioned payment was made to the Plaintiff. On May 13, 2014, the Defendant rejected the Plaintiff’s application on the following grounds (hereinafter “instant disposition”).

Where the full amount of childcare leave benefits for the period of return of the application for difference in childcare benefits has already been paid, and the payment of childcare benefits has been completed due to the provision of Article 87 of the Employment Insurance Act and the guidelines for handling maternity benefits due to changes in the interpretation of the ordinary wage of Korean father ( March 12, 2014), an appeal procedure such as a request for review shall be filed within 90 days from the date of disposition (ordinary payment date of benefits), but in the case of the Plaintiff, the application for review shall be rejected according to the lapse of the period of request for review.

2. Whether the lawsuit of this case is lawful

A. Defendant’s defense prior to the merits

The instant disposition that the Defendant rejected the Plaintiff’s application on May 13, 2014 cannot be deemed a disposition subject to appeal, and the Defendant’s last payment of childcare leave to the Plaintiff shall not be deemed a disposition subject to appeal.

11. 1. The lawsuit of this case is the date of the disposition, and as such, the lawsuit of this case was filed 90 days after it was filed, and thus, it is unlawful.

B. Determination

1) Where an administrative disposition or a decision on administrative appeal becomes final and conclusive due to the lapse of the appeal period, the final and conclusive power means that a person whose legal interest is infringed upon due to the disposition can no longer dispute the validity of the disposition or the decision, and does not recognize res judicata as such in the judgment, and thus, it does not become final and conclusive, and us or the court may not make any assertion or decision inconsistent with the facts underlying the disposition, and even if the previous disposition on revocation of childcare benefits becomes final and conclusive due to the lapse of the appeal period, it does not constitute a legal relation that there is no claim for medical care benefits, and as long as the previous disposition on revocation of childcare benefits becomes final and conclusive due to the lapse of the appeal period, it is permissible to claim medical care benefits again, and if so rejected, it may seek new rejection disposition as a new rejection disposition (see Supreme Court Decision 92Nu17181, Apr. 13, 1993). Meanwhile, Article 70(2) of the Employment Insurance Act provides that a person who intends to receive childcare benefits shall file an application within 12 months after the expiration of childcare benefits.

2) We examine the legitimacy of the instant lawsuit in light of the aforementioned legal doctrine and the relevant statutes.

Even if the plaintiff's claim for temporary retirement for childcare on October 17, 201, when the plaintiff started the first temporary retirement for childcare, the plaintiff's remaining claim for temporary retirement for childcare, cannot be deemed to have lapsed three years on April 23, 2014, which is the period of extinctive prescription. Thus, the plaintiff's claim for temporary retirement for childcare for the defendant still exists, and the plaintiff can file a claim for the remaining claim for temporary retirement for childcare against the defendant again, and if that claim is rejected, the plaintiff can still bring a claim for the refusal disposition against the defendant, and the period of filing a lawsuit shall be determined based on the disposition of this case, which is a new rejection disposition. Since it is apparent in the record that the plaintiff filed the lawsuit of this case within 90 days from the date of the disposition of this case, the plaintiff can bring a dispute as to whether it is illegal lawfully. Accordingly, the defendant's claim on a different premise

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

Of the Plaintiff’s wage, bonuses, long-term continuous work allowances, meal allowance, transportation subsidy, job-level subsidy, job-based welfare card payment for a certain amount of work or quality is a fixed wage to be paid periodically and uniformly for a period of wage calculation, regardless of the actual number of working days or the amount received. However, the instant disposition that rejected Plaintiff’s claim for payment of the difference by deeming that the above item is not an ordinary wage is unlawful.

B. Relevant statutes

The provisions of the attached Table shall be as specified in the statutes.

C. Determination

1) Standard for determining ordinary wages

According to Article 95(1) of the Enforcement Decree of the Employment Insurance Act, childcare leave benefits under Article 70(3) of the Employment Insurance Act refer to the monthly amount equivalent to 40/100 of the ordinary monthly wage calculated pursuant to the Labor Standards Act as of the first day of childcare leave. Article 6(1) of the Enforcement Decree of the Labor Standards Act provides that ordinary wages refer to the hourly amount, daily amount, weekly amount, weekly amount, monthly amount, or contract amount, which is determined to be paid for contractual or total labor regularly and uniformly.

Whether a certain wage constitutes ordinary wage shall be determined by objective nature based on whether the wage is paid as money or goods to a person who works for a contractual work, and shall not be determined by formal standards, such as the name of the wage or the length of the payment cycle. Here, the remuneration for contractual work refers to the money or goods prescribed to be paid by an employer and an employee with respect to the work ordinarily provided during the contractual work hours. The wage that an employee receives from an employer for a work other than those provided during the contractual work hours or provided under a labor contract cannot be deemed as the remuneration for a contractual work, and does not constitute ordinary wage. Determination of the remuneration for contractual work should be based on how the employee and an employer evaluated the value of the work ordinarily provided during the contractual work hours and determined to pay money or goods to the employee for that time. Since such money or goods were not paid immediately after the working hours or immediately after the working hours, it cannot be said that the payment for contractual work does not constitute remuneration for contractual work solely on the basis that such money or goods were not paid within the near time.

Specifically, in order for certain wages to belong to ordinary wages, ① ‘regularness' should be provided.

It means that wages are continuously paid at regular intervals, and ② ‘ uniform payment' means not only the payment to all workers, but also the payment to all workers who meet certain conditions or standards, ③ ‘fixedness' means ‘the nature of the payment, regardless of achievements, achievements, or other additional conditions, naturally, of the work provided by the worker (see Supreme Court en banc Decision 2012Da89399, Dec. 18, 2013).

2) In full view of the entries in the certificate of evidence No. 3 and the purport of the entire facts and arguments in this court, the Korea Workers’ Compensation and Welfare Service paid bonuses at 600% per annum to all employees other than those subject to the annual salary system, and such bonuses were paid in installments by 50% per annum on the date of payment of each salary, and the fact that the bonus was paid by calculating the number of working days in the event of new appointment, reinstatement, temporary retirement, suspension from office, retirement, etc. during the period of payment of the bonus from the beginning of the month to the end of the month is recognized. According to the above facts of recognition, the bonus constitutes a fixed wage which is paid periodically and uniformly, since it can be deemed that the payment is finalized every month only if it provides a contractual work.

B) Comprehensively taking into account the description of subparagraph 3 and the purport of the entire facts and arguments in this court, the Korea Labor Welfare Corporation shall pay a long-term continuous allowance to employees who have worked for not less than five years according to the remuneration rules (attached Table 2) according to the number of employees in accordance with the annual salary system, and the fact that employees subject to the annual salary system have not paid a long-term continuous allowance, and according to the remuneration regulations (attached Table 2), that employees are divided into a certain group by year and pay the same long-term continuous service allowance to each group. According to the above facts, the long-term continuous service allowance constitutes ordinary wage, which is a fixed wage regularly and uniformly paid, inasmuch as it can be deemed that payment is finalized every month if employees who have worked for not less than five years for a fixed term.

C) Comprehensively taking account of the description of school meal subsidy No. 3 and the purport of the entire facts and arguments in this court, the Korea Workers' Compensation and Welfare Service shall pay a certain amount of monthly amount to employees on the date of payment of school meal subsidy within budgetary limits, but in cases where the period of service is less than one month, it shall be calculated on a daily basis, and in the case of the Plaintiff, it may be recognized that the school meal subsidy is paid 10,000 won per month. According to the above facts, if the school meal subsidy is provided to all employees, it can be deemed that the payment has become final and conclusive every month, and it constitutes a fixed wage, which

D) Comprehensively taking account of the entries in the certificate No. 3 and the purport of the entire arguments and substantial facts in this court, the Korea Labor Welfare Corporation shall pay the employee a self-driving fee or a transportation subsidy within the scope of the budget, and pay it on a daily basis if the period of service is less than one month. However, if an employee who provides an exclusive vehicle at the Korea Labor Welfare Corporation does not pay a driver's expenses or a transportation subsidy, and the Plaintiff is paid a transportation subsidy of KRW 10,000 per month. According to the above facts acknowledged, if a transportation subsidy provides a prescribed work to an employee who does not receive an exclusive vehicle, it can be deemed that the payment has become final every month, and it constitutes a fixed wage which is regularly and uniformly paid.

E) Comprehensively taking account of the entries of the customized welfare card in subparagraph 3 and the purport of the entire arguments and arguments in this court, the Korea Labor Welfare Corporation introduced a customized welfare program since 2006, and paid money and valuables paid as the previous workers’ day, congratulatory money and valuables for anniversary of establishment, congratulatory money and valuables for life, self-development expenses, health examination expenses, etc., by integrating them in the card points. Officers and employees are obliged to subscribe to group insurance with a certain point out of the allocated welfare points, and the remainder points may be paid by applying for the deduction of welfare points directly or by using the welfare card and applying for the deduction of welfare points after purchase. The amount of money paid through the customized welfare system of the Korea Labor Welfare Corporation (598,000 won for a married person), and the amount of money paid to an unmarried person in 2010 falls under an unmarried person’s ordinary wage and constitutes an unmarried person’s continuous payment of the fixed amount of money to the Korea Labor Welfare Corporation according to the above regular standard.

Therefore, given that bonuses, long-term continuous service allowances, meal service subsidies, transportation subsidies, and customized welfare cards should be included in ordinary wages, the instant disposition that rejected the Plaintiff’s claim for difference payment by calculating childcare leave benefits based on the same premise after deducting the aforementioned wage items from ordinary wages calculation is unlawful.

As to this, the Defendant alleged that the instant disposition is legitimate since the instant disposition was rendered in accordance with the Ministry of Employment and Labor’s guidance for labor management guidance (i.e., January 23, 2014), which provides that the wage items claimed by the Plaintiff shall be included in the ordinary wage, as a matter of principle, only for the cases dealt with after the issuance of the relevant attached Table and related Supreme Court Decision (Supreme Court en banc Decision 2012Da89399 Decided December 18, 2013), which is related to Article 5-2 of the former Guidelines for Calculation of Ordinary Wage Act, which does not stipulate the wage items claimed by the Plaintiff as ordinary wage, but rather should be determined through the organic interpretation of the relevant statutes, etc. as seen earlier, the Defendant’s assertion on a different premise is rejected.

4. Conclusion

Then, the plaintiff's claim is reasonable, and it is decided as per Disposition by admitting it.