(영문) 서울고등법원 2015.7.9. 선고 2015누35415 판결

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

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiffs' lawsuit is dismissed first, and the plaintiffs' claim is dismissed first.

Reasons

1. Quotation of the first instance judgment

The reasoning for the court’s explanation concerning this case is as follows: (a) by adding or changing part of the reasoning of the judgment of the first instance under Paragraph (2) below; and (b) by adding a judgment on the matters asserted by the defendant in the trial under Paragraph (3), it is identical to the reasoning of the judgment of the first instance; and (c) by citing it under Article 8(2) of the Administrative Litigation Act

2. Additional modifications

○ Head of the first instance judgment, on the 2nd page 6th instance judgment, changed “1.15” to “ November 14, 201,” and “from September 26, 2012 to September 25, 2012,” respectively.

○ From 2, the second to 11 of the judgment of the first instance is amended as follows.

“The Plaintiff applied for childcare leave benefits to the Defendant, and the Defendant paid childcare leave benefits calculated pursuant to Article 95 of the Enforcement Decree of the Employment Insurance Act on the premise that only the Plaintiffs’ basic pay and qualification certificates fall under ordinary wages as follows.

【Plaintiff A】

A person shall be appointed.

【Plaintiff B】

A person shall be appointed.

In the first instance judgment, the disposition of this case is unlawful. The defendant's claim for the remainder of the child-care leave benefits already paid by the defendant, including bonuses, long-term continuous service allowances, meal support expenses, and transportation support expenses, as long as the points of family-specific welfare cards do not correspond to ordinary wages under the Labor Standards Act, as long as the amount of bonuses, long-term continuous service allowances, meal support expenses, transportation support expenses, and ordinary wages calculated based on ordinary wages, including customized welfare points, constitutes ordinary wages under the Labor Standards Act, the disposition of this case which the defendant rejected is erroneous in calculating ordinary wages as the defendant's decision of the child-care leave benefits. Thus, the entire disposition of this case should be revoked, and it does not include the remainder after deducting the child-care leave benefits already paid by the defendant from the position of childcare leave calculated based on ordinary wages including bonuses, long-term service allowances, meal support expenses, transportation support expenses, etc.

3. 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 the employer during the period of temporary retirement for childcare. However, the instant disposition rejecting the said application by the Plaintiffs is lawful on the grounds that Plaintiff A applied for temporary retirement for childcare for the Defendant on January 3, 2014, and Plaintiff B did not have the required documents as above while filing the application for temporary retirement for childcare on May 9, 2014.

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 period of childcare leave from November 15, 2010 to November 14, 201, the date on which the Plaintiff may file an application for childcare leave is no longer than November 14, 2012, and Plaintiff B’s period of childcare leave from May 11, 201 to May 10, 2012, the date on which the Plaintiff may file an application for childcare leave is no longer than May 10, 201, and Plaintiff B’s application for childcare leave is legitimate, since Plaintiff A’s period of childcare leave should be no more than May 3, 2013. However, Plaintiff A’s period of childcare leave on January 3, 2014, and Plaintiff B should be no more than May 9, 2014.

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 period of childcare leave of the Plaintiffs, 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 defect, such as the defect in the documents required for the application, within a reasonable period, and shall not immediately refuse the application without requiring the supplementation. Although the defect in the documents asserted by the defendant constitutes a defect that can be supplemented, there is no evidence to prove that the defendant requested the supplementation of the documents against the plaintiffs. Thus, the defendant's assertion that the disposition of this case which rejected the above application by the plaintiffs 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 November 15, 201, the last day of the childcare leave, Plaintiff A applied for the additional childcare leave benefits on January 3, 2014, and Plaintiff B also filed an application with the Defendant on May 9, 2014 for the payment of the remainder after subtracting the amount of childcare leave benefits already paid by the Defendant from the ordinary wages calculated including bonuses, long-term continuous service allowances, meal service subsidies, transportation subsidies, and customized welfare points, which were calculated on the basis of the period from September 26, 2012 to September 25, 2013.

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

4. Conclusion

Therefore, the plaintiffs' claims are 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.