Plaintiff (Law Firm Vindication, Attorney Park Jae-hoon, Counsel for plaintiff-appellant)

△△ Middle School Head (Law Firm Uniform, Attorney Kim Yong-sik, Counsel for defendant-appellant)

March 29, 2011

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant's disposition of reinstatement to the plaintiff on September 24, 2009 shall be revoked.

1. Details of the disposition;

A. On March 1, 2001, the Plaintiff was newly employed as a teacher at the ○○ Middle School located in Gyeyang-si (hereinafter omitted) and worked for the above middle school. On February 15, 2009 (hereinafter omitted), the Plaintiff was issued a transfer order on March 1, 2009 to the △△ Middle School located in the △△△△△ branch located in the same month, and on March 17, 2009, the Plaintiff filed a petition with the head of the education center of the Gyeonggi-do High School of Education for a childcare leave for the period from March 1, 2009 to February 28, 2010 due to the Nonparty’s fostering of the Plaintiff’s first child (the Nonparty’s birth on April 7, 2008). Accordingly, the head of the education office of the Goyang-do High Office of Education issued a childcare leave to the Plaintiff on February

B. Around August 20, 2009, the Plaintiff asked the Defendant’s side to have the second child during the period of childcare leave and the expected date of birth would return to the original child to the original child for submission of the childbirth leave on November 2009. However, the Defendant’s side heard the answer to the effect that it is impossible as a matter of principle that the second child’s childbirth cannot be deemed as a cause of extinction of childcare leave for the first child, and that reinstatement is not a matter of principle for the reasons such as efficient operation of school schedule and prevention of confusion due to the end of the school year.

C. On September 9, 2009, the Plaintiff submitted to the Defendant a childcare leave reinstatement statement stating that “the grounds for temporary retirement have ceased to exist.” However, on September 24, 2009, the Defendant was not a person subject to early reinstatement but returned the Plaintiff’s application for reinstatement (hereinafter “instant disposition”).

D. After that, the Plaintiff filed an administrative appeal to the effect that the Defendant revoked the instant disposition, and the teachers’ appeals review committee dismissed the Plaintiff’s claim on June 28, 2010.

[Recognition] Facts without dispute, Gap evidence 2-1, Gap evidence 4, Gap evidence 5-1, 2, Eul evidence 3-1 to 4, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Defendant’s disposition that rejected the Plaintiff’s application for reinstatement during the period of childcare leave is no legal basis, and rather, the Defendant is obligated to allow the Plaintiff’s reinstatement based on fundamental rights, such as the freedom of occupation and the right to public office, etc., among the freedom of occupation under the Constitution. Although the Plaintiff was in a state of temporary retirement to raise his/her first child, the Plaintiff requested the permission of reinstatement to apply for a different maternity leave, which is guaranteed under the Constitution and the right to receive a maternity leave under the Labor Standards Act. This is based on the right to protect the mother’s gender guaranteed under the Constitution and the right to receive a maternity leave under the Labor Standards Act, and the first time when the Plaintiff requested the reinstatement was on August 20, 2009. In light of the above, the Defendant’s disposition that the Plaintiff returned the Plaintiff’s reinstatement is unlawful, going beyond and abused discretion.

B. Relevant statutes

The entries in the attached Table-related statutes shall be as follows.

C. Determination

Article 73 of the State Public Officials Act provides that "the reinstatement during the period of childcare leave shall be reported to the appointment authority or appointment-recommendation authority within 30 days if the ground for reinstatement ceases to exist, and the appointment authority shall order reinstatement without delay; and the person in charge of appointment shall report it to the appointment authority where the ground for the childcare leave ceases to exist during the period of childcare leave; and the person in charge of handling diseases, childcare, nursing leave, or reinstatement of the Gyeonggi-do Office of Education; and the person in charge of appointment shall report it to the person in charge of appointment when the ground for the childcare leave ceases to exist during the period of childcare leave; and the person in charge of appointment shall, in principle, order the person in charge of the above treatment guidelines of the Ministry of Education, Science and Technology and the Gyeonggi-do Office of Education to order the person in charge of the above management of the right to childcare leave; the principle that the person in charge of providing guidance on the grounds for extinguishment of the right to childcare leave and the principle that the person in charge of providing guidance on the operation of the teacher in charge of childcare after the due date of childcare leave is inevitable."

The following circumstances revealed as to the instant case, namely, that there was no reason for extinguishment of childcare leave, the Plaintiff’s death, etc., and the Plaintiff asked about reinstatement of childcare leave as seen earlier on the Defendant’s side, even though the starting date of childcare leave was around August 20, 2009, but the above time was imminent, as well as the Defendant’s response was possible on September 2, 2009, immediately after the beginning of the semester, to respond to this end, the Defendant’s response was made to the Plaintiff’s aforementioned process. In light of the above circumstances, the Plaintiff’s failure to specifically state the reason for extinguishment of childcare leave on September 9, 2009, and the Plaintiff’s failure to comply with the Plaintiff’s issued childcare leave’s direction for smooth treatment of childcare leave, and the Plaintiff’s allegation that childcare leave could not change the Plaintiff’s period of childcare leave’s period of childcare from the Plaintiff’s school due to the actual cause of reinstatement to the Plaintiff’s child’s childcare leave’s temporary retirement.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment Omission of Related Acts]

Judges Kim Su-cheon (Presiding Judge) Na Jong-hun