(영문) 수원지방법원 2015.1.22. 선고 2014구합3625 판결

1. The Defendant’s disposition on February 6, 2014 to return the difference in childcare leave filed by the Plaintiff A on February 6, 201 and the disposition on May 19, 2014 to return the difference in childcare leave filed with the Plaintiff B is revoked.

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

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. The Plaintiffs were employed as a member of the Korea Workers’ Compensation and Welfare Service, and Plaintiff A had a child care leave from November 15, 201 to November 15, 201, and Plaintiff B from September 26, 2012 to September 26, 2012 (hereinafter “instant child care leave”).

B. The Plaintiffs filed an application for the payment of childcare leave benefits to the Defendant, and the Defendant paid the Plaintiff A KRW 12-month childcare leave benefits from November 15, 201 to November 14, 201. ② From May 11, 2011 to May 10, 201, Plaintiff B paid KRW 7,121,170 for the period from May 10, 201 to May 10, 201.

C. On January 3, 2014, Plaintiff A filed an application with the Defendant for payment of the difference between the childcare leave benefits paid to Plaintiff A and the aforementioned childcare leave benefits paid by the Defendant on the ground that the full amount of childcare leave benefits was already paid on February 6, 2014 (Evidence A) and Plaintiff B filed an application with the Defendant for payment of the difference in childcare leave benefits for the aforementioned purport on May 9, 2014, and the Defendant rejected the said application for the aforementioned purport on May 9, 2014 (Evidence A 4, and collectively referred to as “the instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1 to 4, Eul evidence 1 to 4, the purport of the whole pleadings

2. Determination on the defense prior to the merits

A. The defendant's main defense

Administrative litigation shall be filed within 90 days from the date of becoming aware of the disposition, etc., and within one year from the date of the disposition, etc., and the plaintiffs filed the lawsuit in this case after the lapse of 90 days from the date of the final disposition of childcare leave benefits (Plaintiff A: November 23, 201, Plaintiff B: May 16, 201). Thus, the lawsuit in this case is unlawful since the lapse of the period for filing the lawsuit in this case.

B. Determination

1) Generally, in a case where an administrative disposition or a ruling on administrative appeal becomes final and conclusive after the lapse of the appeal period, its final and conclusive power means that the person against whom the legal interest was infringed cannot dispute the validity of the disposition or ruling, and further, it does not mean that res judicata such as the ruling is recognized. As such, factual or legal judgment which forms the basis of the disposition becomes final and conclusive, and the parties or the court may not make any assertion or judgment inconsistent with it (see, e.g., Supreme Court Decisions 92Nu17181, Apr. 13, 1993; 2002Du11288, Jul. 8, 2004).

2) Article 70(2) of the former Employment Insurance Act (amended by Act No. 12323, Jan. 21, 2014; hereinafter “Employment Review Act”) provides that a person who intends to receive childcare leave benefits shall file an application within 12 months after the date the childcare leave begins and the date the childcare leave ends, and Article 107 of the Employment Insurance Act provides that a person who intends to receive childcare leave benefits or the right to return childcare leave benefits terminates by extinctive prescription unless he/she exercises the right to receive childcare leave benefits for three years. Thus, a person who intends to receive childcare leave benefits may again file a claim with the defendant for childcare leave benefits, and if such refusal is rejected, the rejection disposition may still be subject to an appeal litigation, and the period of filing a lawsuit shall be determined based on new rejection disposition.

However, the plaintiffs did not dispute the past temporary retirement benefit payment disposition, but the defendant's refusal of a new claim for payment made on January 3, 2014 and May 9, 2014, i.e., the disposition of this case as the subject matter of appeal litigation, and it is apparent in the record that the lawsuit of this case was filed within 90 days from the date when the disposition of this case became known. Thus, the defendant's prior defense to the purport that the lawsuit of this case is unlawful because the period for filing the lawsuit of this case has expired as of the last payment date of the past.

3. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

The points of bonuses, long-term continuous pay, meal allowance, transportation subsidy, and customized welfare card are fixed wages to be paid periodically and uniformly during the wage calculation period. Therefore, the Defendant is obligated to pay the difference between the fixed amount of childcare leave benefits including these items as ordinary wages and the childcare leave benefits already received by the Plaintiffs, and thus, the instant disposition that rejected such payment is unlawful.

B. Relevant statutes

Attached Form 3 is as listed in the "relevant Acts and subordinate 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 amount equivalent to 40/100 of the monthly ordinary wage calculated according 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 wage refers to hourly wage, daily wage, weekly wage, weekly wage, monthly wage, or contract wage, which shall be paid for contractual or total labor regularly and uniformly.

Whether a certain wage constitutes ordinary wage shall be determined based on the objective nature of the wage, which is the money and valuables paid to an employee for a contractual work, and shall not be determined by formal standards, such as the name of the wage or the end-up of the payment cycle. The term “fixed working hours” refers to money and valuables agreed to be paid by an employer and an employee with respect to the work ordinarily provided for the contractual work hours. Wages paid to an employee in excess of the contractual work hours or wages paid to an employee for a work other than those provided under a labor contract cannot be deemed as the remuneration for a contractual work, and thus does not constitute ordinary wages. Determination of what is the above price for a contractual work ought to be based on how the employee and the employer evaluated the value of the work ordinarily provided for the contractual work hours and determined to pay money and valuables for that time. On the ground that such money and valuables were not paid immediately after the working hours or immediately after the working hours, it cannot be said that such circumstance alone does not constitute a remuneration for a contractual work.

Specifically, that a certain amount of wages should be ‘10' in order to belong to ordinary wages 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, and ③ ‘a fixedness' means ‘a nature, regardless of achievements, performance, or other additional conditions, of which payment is confirmed as a matter of course for work provided by an employee (see Supreme Court en banc Decision 2012Da89399, Dec. 18, 2013).

2) Specific determination

(A) bonus;

In full view of the purport of the entire arguments in the above evidence, the Korea Workers' Compensation and Welfare Service paid 600% per annum to all employees other than those subject to the annual salary system as bonus, and such bonus was paid in installments by 50% on the date of each payment of remuneration. The fact that a new appointment, reinstatement, temporary retirement, suspension from office, or retirement occurs during the bonus payment period from the beginning of the month to the end of the month can be acknowledged that the payment was made by calculating the number of working days for the bonus. According to the above facts of recognition, the bonus can be deemed to have become final and conclusive every month, and the bonus constitutes a fixed wage which is regularly and uniformly paid.

B) Long-term continuous service allowances;

In full view of the purport of the entire arguments in the above evidence, the Korea Workers' Compensation and Welfare Service shall pay the long-term continuous service allowance under the Regulations on Remuneration according to the period of service training for employees who have worked for not less than five years, and the fact that employees subject to the annual salary system have not paid the long-term continuous service allowance, and according to the Regulations on Remuneration, the fact that employees are divided into a certain group on an annual basis and paid the same long-term service allowance by group. According to the above facts of recognition, if employees who have worked for not less than five years have provided contractual service to employees subject to the annual salary system other than those subject to the annual salary system, it can be deemed that the payment has become final and conclusive every month, and thus

C) Comprehensively taking into account the purport of the entire arguments as seen earlier, the Korea Labor Welfare Corporation shall pay a certain amount of money every month to employees on the date of payment of school meal expenses within budgetary limits, but if the period of service is less than one month, it shall be calculated on a daily basis, and in the case of the plaintiffs, it can be recognized that the Plaintiffs received school meal expenses of KRW 100,000 per month. According to the above facts, if all employees provide contractual labor, it can be deemed that the payment has been finalized every month, and it constitutes ordinary wages which are regularly and uniformly paid.

D) Comprehensively taking account of the purport of the entire arguments as seen earlier, the Korea Labor Welfare Corporation shall pay the employee a self-driving fee or a transportation subsidy within the scope of the budget, and if the period of service is less than one month, it shall be paid on a daily basis. However, in the case of an employee who provides an exclusive vehicle in the Korea Labor Welfare Corporation, he/she does not pay a self-driving fee or a transportation subsidy, and in the case of the plaintiffs, he/she may recognize that he/she received a transportation subsidy of KRW 100,000 per month. According to the above facts, according to the above facts, it can be deemed that the payment has become final every month, and it constitutes a fixed wage

E) Comprehensively taking into account the purport of the entire arguments as seen earlier of the customized welfare card’s points, the Korea Labor Welfare Corporation introduced a customized welfare program from around 2006, and paid money and valuables in the form of card points such as workers’ day, congratulatory money and valuables for supporting the establishment of a new anniversary, money and valuables for supporting livelihood, self-development expenses, health examination expenses, etc. The officers and employees are obliged to subscribe to group insurance among the welfare points allocated, and the remainder points can be paid by applying for the deduction of welfare points by directly using the welfare card or using the welfare card. The amount of money paid through the customized welfare program of the Korea Labor Welfare Corporation is 53,000 won (a married person 598,000 won), and 524,000 won (a mixed person 589,000 won) for an unmarried person in 201, and the amount of money paid to the officers and employees of the Korea Labor Welfare Corporation can be recognized every year as constituting a fixed wage amount corresponding to the ordinary wage.

3) Sub-committee

Therefore, the points of bonuses, long-term continuous service allowances, meal subsidy, transportation subsidy, and customized welfare card shall be included in ordinary wages. The disposition of this case based on the premise that the Defendant paid all childcare leave benefits by deeming only the basic salary except each of the above items as ordinary wages in calculating ordinary wages, and paying all of the childcare leave benefits calculated based thereon is unlawful.

4. Conclusion

Therefore, the plaintiffs' claim of this case is reasonable, and it is so decided as per Disposition by admitting it.