2014Guhap61279 The revocation of revocation of the application for the difference payment of childcare leave benefits

A

The Seoul Regional Employment and Labor Agency Head of the Seoul Regional Labor Office

September 26, 2014

November 18, 2014

1. On April 28, 2014, the Defendant’s disposition of rejecting an application for payment of the difference in the amount of childcare leave benefits against the Plaintiff is revoked.

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff is working at the Korea Workers’ Compensation and Welfare Service and was on childcare leave from February 7, 201 to November 30, 201. The Plaintiff was paid childcare leave according to the monthly ordinary wages calculated by the Defendant for the aforementioned period of childcare leave.

B. On April 24, 2014, the Plaintiff submitted an application to the Defendant stating that “The amount of bonuses, long-term continuous service allowances, meal allowance, transportation subsidy, and customized welfare card is included in ordinary wages, and the Defendant is obligated to pay the difference between the paid-in temporary retirement benefits based on the fixed ordinary wage as above, and thus, the Defendant is obligated to pay the difference between the paid-in temporary retirement benefits and the paid-in temporary retirement benefits based on the fixed ordinary wage.” The Defendant submitted an application to the Defendant that “The payment of the difference between the paid-in temporary retirement benefits calculated based on the fixed ordinary wage and the paid-in temporary retirement benefits to the Plaintiff, including bonuses, etc.” (hereinafter “instant application”).

C. In order to verify the purport of the instant application on the same day, the employee in charge of the Defendant sent a phone call to a certified labor affairs consultant B, who was delegated with all the authority to apply for childcare benefits by the Plaintiff. The purport of the application is the re-determination of the property for childcare benefits according to ordinary wage. If an objection is not filed without a justifiable request, such as a request for examination or administrative litigation, I would like to confirm the corresponding Defendant’s opinion on the treatment of the corresponding defendant. Even if the person is the peremptory person under the guidelines for the handling of the Employment Labor Request, I

D. On April 25, 2014, the Plaintiff submitted a document stating that “The purport of the submission of the instant application is not that of the request for review, and thus, it is not that of the request for review. It is not that of the request for a return disposition. It is not that of the request for a future guidance on the progress

E. On April 28, 2014, the Defendant rendered a notification to the Plaintiff on the return of the instant application to the effect that “the Plaintiff requested the return of the instant application. The administrative litigation is possible within 90 days from the date of becoming aware of the initial disposition, and within one year from the date of the initial disposition” (hereinafter “instant disposition”).

【Ground of recognition】 The fact that there has been no dispute, Gap evidence 1, 4, Eul evidence 1, 2, 5 through 9 (including additional evidence) and the purport of all pleadings

2. Defendant’s defense and judgment prior to the merits

A. The defendant's assertion

The rejection of the instant application is merely based on the Plaintiff’s request for return, and it cannot be deemed an administrative disposition or there is no interest in legal action to dispute this. The Defendant’s last payment of childcare leave to the Plaintiff on December 13, 201 shall be subject to disposition. Since the instant lawsuit was filed with the intention of 90 days thereafter, it is unlawful.

B. Determination

According to the above facts, the defendant rejected all of the application of this case on the ground that "the plaintiff requests the return of the application of this case" and "the return of the application of this case was requested".

However, the following circumstances revealed through the above facts, namely, ① the Plaintiff applied for the instant case to the effect that “the Defendant shall pay the difference between the childcare benefits calculated on the basis of the ordinary wage determined by including bonuses and the childcare benefits paid to the Plaintiff.” The Plaintiff’s agent expressed his/her opinion in telephone conversations with his/her employees in charge, and “the purport of the application is that the purport of the application is the property of childcare benefits. It is not the request for review, so the Plaintiff’s opinion is not the request for review.” ② The Plaintiff’s interpretation that “the Plaintiff seeks disposition against the Defendant” means not seeking the return of documents based on the premise of the withdrawal of the application, but seeking the disposition against the Defendant indicating the guidance of the appeal procedure. ③ If the Defendant’s refusal disposition against the instant application was made, the Plaintiff may contest the appeal procedure, and ④ the Plaintiff’s rejection of the application can not be seen as having received the payment of the childcare benefits without the acceptance of the application, and thus, the Plaintiff’s allegation that the Plaintiff’s request for administrative disposition against the Defendant’s actual payment of the instant application constitutes an administrative disposition against the Plaintiff’s request.

Furthermore, in cases where an administrative disposition or an administrative appeal ruling becomes final and conclusive due to the lapse of the appeal period, the final and conclusive effect means that a person whose legal interest is infringed upon due to the disposition can no longer dispute the validity of the disposition or ruling, and does not recognize res judicata as such in the judgment, and thus, the factual or legal judgment which forms the basis of the disposition becomes final and conclusive, and the parties concerned or the court cannot make any assertion or judgment inconsistent with it. Even if the previous disposition to cancel the industrial accident compensation benefits becomes final and conclusive due to the lapse of the appeal period, the legal relationship that there is no claim for medical care benefits does not exist, and even if the previous disposition to cancel the industrial accident compensation benefits becomes final and conclusive due to the lapse of the appeal period, a claim for medical care benefits may be filed again, and if such disposition is made by new donation, it may seek whether it is unlawful as a new donation disposition (see Supreme Court Decision 92Nu17181, Apr. 13, 193). Meanwhile, Article 70(2) of the Employment Insurance Act provides that a person who intends to apply for childcare leave within 12 months after the expiration.

Therefore, a person who intends to receive childcare benefits may again file a claim for childcare benefits with the defendant on the premise that the extinctive prescription has not yet been granted, and the rejection disposition may still be subject to appeal litigation, and the period of filing a lawsuit shall also be determined on the basis of new rejection disposition (However, the existence of the right to file an application, which is a prerequisite for recognizing the nature of the rejection disposition, shall be determined abstractly by examining whether the applicant has the right to file a claim under the interpretation of the relevant laws and regulations without considering who is the applicant in a specific case, and the applicant does not mean the right to obtain the satisfactory result of accepting the application beyond the right to respond just to the application. Thus, in a case where a citizen files an application, if it is deemed that the applicant has the right to file an application for childcare benefits as an administrative action under the interpretation of the provision that serves as the basis of the application, the rejection act shall be deemed the disposition that becomes the subject of appeal litigation, and in detail, whether the application can be accepted shall be determined on the ground of the existence of the right to file an application (see, e.g., Supreme Court Decision 2007Du2638, Sept.

However, as seen earlier, the Plaintiff did not dispute partial payment of childcare leave benefits in the past, but did not object to the Defendant’s rejection of such new claim, namely, the instant disposition was filed as the subject of an appeal litigation, and it is apparent in the record that the Plaintiff filed the instant lawsuit within 90 days from the date on which he became aware of the instant disposition. As such, the Defendant’s assertion to the effect that the instant lawsuit is unlawful with the lapse of the period of filing based on the last payment date

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

Bonuses, long-term continuous service allowances, meal subsidies, transportation subsidies, and customized welfare cards constitute ordinary wages as fixed wages to be paid periodically and uniformly during the period of wage calculation, regardless of the actual number of working days or the amount received. Therefore, the Defendant is obligated to pay the difference between the fixed amount of childcare benefits including the ordinary wages and the already received childcare benefits, and thus, the instant disposition that rejected such payment is unlawful.

B. Determination

The meaning of "the plaintiff's request for disposition of anti-defensive" is that the plaintiff's request for disposition of anti-defensive disposition is sought to determine the substance of the application of this case (the necessary disposition to file a lawsuit). Therefore, the disposition of this case, which made the ground for disposition that the request for return of the application of this case was made, is unlawful (the defendant must review and dispose the application of this case).

4. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.

The presiding judge, the highest judge;

Judges Park Jong-il

Judge No. Doingk