[Order]
The judgment of the court below is reversed, and the case is remanded to the Seoul High Court.
[Reasoning]
We consider the grounds of appeal.
1. Overview of the case and the judgment below
A. Defendant is a company engaged in the business of selling steel products, and the Plaintiff (selected party) and the persons who selected the Plaintiff (hereinafter collectively referred to as "Plaintiffs") are employees of Defendant working at Defendant's Dangjin workplace, which employs 500 or more regular employees, and each has at least one child under the age of 6.
B. Until the conclusion of the pleadings at the court below, Defendant had not installed a workplace childcare facility pursuant to Article 14(1) of the former Infant Care Act (Yeongyua Bogeobbeop, 영유아보육법) (before its amendment by Act No. 10789 of June 7, 2011; hereinafter the "former Infant Care Act") (hereinafter "the provision at issue"), nor had it paid childcare allowances to its employees, including the Plaintiffs.
C. Plaintiffs asserted that, pursuant to the provision at issue, employees with infant children acquire a right to claim childcare allowances against an employer who has not installed a workplace childcare facility, and that Defendant is therefore obligated to pay Plaintiffs childcare allowances equivalent to at least 50/100 of the government childcare subsidy unit price, which is the minimum amount of the childcare allowance, for the period from January 30, 2006 to December 15, 2011.
D. The court below determined that the provision at issue alone cannot be deemed to grant employees a private-law right to directly claim childcare allowances against the employer.
2. Issue
A. The provision at issue (Article 14(1) of the former Infant Care Act) provided: "An employer of a workplace of a certain size or larger as prescribed by Presidential Decree shall install a workplace childcare facility; provided, however, that where the employer of the workplace is unable to install a workplace childcare facility alone, the employer shall jointly install and operate a workplace childcare facility with other employers, or support childcare for employees' children by entering into an entrustment contract with a local childcare facility, or pay a childcare allowance to employees." Paragraph (2) of the same Article provided: "Matters necessary for the installation of childcare facilities, entrustment contracts, and payment of childcare allowances under paragraph (1) shall be prescribed by Ordinance of the Ministry of Health and Welfare."
B. Article 20(1) of the former Enforcement Decree of the Infant Care Act (before its amendment by Presidential Decree No. 23356 of December 8, 2011) provided: "A workplace at which the employer is required to install a workplace childcare facility pursuant to Article 14(1) of the Act shall be a workplace employing 300 or more female employees on a regular basis or 500 or more employees on a regular basis." Article 8 of the former Enforcement Rule of the Infant Care Act (before its amendment by Ordinance of the Ministry of Health and Welfare No. 50 of April 7, 2011) provided: "The childcare allowance under the proviso of Article 14(1) of the Act shall be at least 50/100 of the government childcare subsidy unit price."
C. The issue in this case is whether, during the period from January 30, 2006 to December 15, 2011, which Plaintiffs claim, while the provision at issue was in effect, employees such as Plaintiffs may directly claim payment of a childcare allowance against Defendant, the employer of a workplace of a certain size or larger (hereinafter "obligated workplace"), based on the provision at issue.
3. Determination on whether a right to claim childcare allowance is recognized
A. The goal of statutory interpretation should, in principle, be to faithfully interpret the ordinary meaning of the language used in the statute, while additionally employing systematic and logical interpretation methods that take into account the legislative purpose and intent, the history of enactment and amendment, harmony with the legal order as a whole, and the relationship with other statutes (see Supreme Court en banc Decision 2011Da112391, decided June 21, 2018).
B. In light of the legal principles set forth above, considering comprehensively the legislative purpose and intent of the provision at issue, the history of its enactment and amendment, and the form and content of the provision, the provision at issue may be deemed to constitute a basis for employees of an obligated workplace to directly claim against the employer payment of a childcare allowance equivalent to 50/100 of the government childcare subsidy unit price.
1) Legislative purpose and intent, and history of enactment and amendment
A) Article 12(1) of the Equal Employment Act (Namnyeo Goyong Pyeongdeungbeop, 남녀고용평등법), enacted as Act No. 3989 on December 4, 1987, provided: "An employer shall provide facilities necessary for childcare, such as nursing and daycare, in order to support the continued employment of female employees." The Infant Care Act, enacted as Act No. 4328 on January 14, 1991, provided in Article 7(3): "An employer of a workplace of a certain size or larger as prescribed by Presidential Decree shall install a workplace childcare facility with the authorization of the head of the Si/Gun; in this case, where there is an unavoidable reason preventing the employer of the workplace from installing a workplace childcare facility, the employer shall, as prescribed by Ordinance of the Ministry of Health and Social Affairs, jointly install a childcare facility or pay a childcare allowance to employees." As the Equal Employment Act, amended by Act No. 4976 on August 4, 1995, provided in Article 12(2) that matters concerning the installation and operation of workplace childcare facilities shall be governed by the Infant Care Act, regulation of workplace childcare facilities came to be governed by the Infant Care Act.
B) With regard to the amount of the childcare allowance to be paid by the employer, it was initially provided somewhat abstractly as "the full amount necessary to use a childcare facility located where the workplace is located" (Article 5(3) of the Enforcement Rule of the Infant Care Act as originally enacted), and was subsequently amended in stages to become more specific: to "at least 50/100 of the amount necessary to use a childcare facility located where the workplace is located" (Article 5(3) of the same Enforcement Rule as amended by Ordinance of the Ministry of Health and Welfare No. 16 of January 6, 1996); to "at least 50/100 of the government childcare subsidy unit price" (Article 8 of the same Enforcement Rule as amended by Ordinance of the Ministry of Gender Equality No. 14 of January 29, 2005); and to "at least 50/100 of the government childcare subsidy unit price by age" (Article 8 of the same Enforcement Rule as amended by Ordinance of the Ministry of Health and Welfare No. 50 of April 7, 2011).
Accordingly, the amount of the childcare allowance to be paid by the employer to an employee becomes at least 50/100 of the government childcare subsidy unit price determined annually by the Minister of Health and Welfare. Although the above provisions alone do not fix the specific amount of the childcare allowance to be paid by the employer to an individual employee, the minimum amount of the childcare allowance can be determined.
C) Since the enactment of the Infant Care Act, which provided for the employer's obligation to pay childcare allowances, there was for a long time no public-law sanction for the employer's failure to fulfill this obligation. Article 14-2(2), which was newly established by the amendment to the Infant Care Act by Act No. 11144 on December 31, 2011, after the period for which Plaintiffs claim childcare allowances, introduced for the first time, as a sanction against an employer's failure to fulfill its obligation, a system of publicly announcing the list of non-complying workplaces.
D) In light of the above legislative purpose and intent and the history of enactment and amendment relating to the provision at issue, legislation regarding an employer's childcare support for employees was focused on ensuring that appropriate childcare facilities are installed and operated, and subsequent amendments were made in the direction of strengthening the State's management and supervision of the employer's compliance with its obligations; however, as the original system under the Equal Employment Act, whereby an employer provides facilities necessary for childcare for female employees, was transformed into support for childcare expenses for employees working at obligated workplaces, amendments to the Enforcement Rule specifying and rationalizing the amount of the childcare allowance were also made concurrently.
E) Therefore, at least during the period for which Plaintiffs claim childcare allowances, the minimum amount of the childcare allowance that Plaintiffs could receive can be specified, and it can be said that the legislator's intent to grant employees a right to claim childcare allowances against employers based on the provision at issue became concrete and clear (although the amendment to the Infant Care Act of May 20, 2014, deleted the portion of the provision at issue concerning the employer's obligation to pay childcare allowances, thereby extinguishing the basis for a private-law right to claim childcare allowances under the provision at issue, this is a circumstance arising after the period for which Plaintiffs claim, and does not affect this case).
2) Form and content of the provision
A) On its face, the provision at issue takes the form of directly ordering one private party to perform an obligation toward another private party, stating that "the employer... shall pay a childcare allowance to employees."
Where a statutory provision is one that prohibits certain conduct, the question of whether it is intended to directly determine the validity of a juristic act in violation thereof is a matter concerning the legal effect, in a broad sense, of the statutory provision in question, and is to be determined according to the interpretation of that statutory provision. Accordingly, if there is an express provision on this point, it should be followed; and where there is no such provision, it should ultimately be determined by examining, in light of the purpose and meaning of the prohibitory provision, whether invalidity or other limitation on the effect of a juristic act in violation thereof is required (see Supreme Court Decision 2008Da75119, decided December 23, 2010; Supreme Court Decision 2015Da219528, decided October 12, 2018, etc.). The above legal principle applies in principle equally to cases in which a statute orders the performance of a specific act between private parties (provided that, in the case of a performance-mandating provision, consideration must also be given to the fact that a party may directly seek performance in accordance with the mandatory provision and the court may order such performance, thereby achieving the effect intended by the provision).
B) With regard to the installation of a childcare facility, which is the principal obligation of an employer of an obligated workplace, the provision at issue allows the employer to choose one of three methods: directly installing a workplace childcare facility, jointly installing a workplace childcare facility with other employers, or entering into an entrustment contract with a local childcare facility; but where the employer is unable to install a childcare facility, it imposes an obligation to pay a childcare allowance to employees.
Even though the employer may choose one of the three methods with respect to the provision of a childcare facility, if the employer has failed to install a childcare facility by any of the three methods, the employer's obligation may be deemed to be fixed as an obligation to pay a childcare allowance.
4. Determination as to this case
A. As set forth above, an employee of an obligated workplace may claim against the employer, based on the provision at issue, payment of the minimum amount of the childcare allowance equivalent to 50/100 of the government childcare subsidy unit price.
Nevertheless, the court below determined that an employee cannot be deemed to acquire a private-law right to directly claim childcare allowances against the employer based on the provision at issue. The judgment of the court below is erroneous in that it misapprehended the legal principles concerning the legal nature of the provision at issue and its interpretation as set forth above. The ground of appeal pointing this out is with merit.
B. However, we add the following: during the period when the provision at issue was in effect, the government childcare subsidy unit price, which serves as the basis for calculating the childcare allowance, was set on a differentiated basis each year by the Minister of Health and Welfare according to household income levels, among other factors; and separately from the legal principles set forth above, the burden of asserting and proving whether Plaintiffs' income levels satisfy the requirements for payment lies with Plaintiffs, in accordance with the principle governing the allocation of the burden of assertion and proof. Since the parties' arguments and evidentiary examination concerning Plaintiffs' income levels were conducted, and deliberation on this issue proceeded, up through the court below, and since Defendant has also raised a defense of extinctive prescription, the court below, upon remand, should additionally deliberate and determine these issues as well.
5. Conclusion
Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for further deliberation and judgment. This Judgment is rendered with the unanimous concurrence of all Justices participating in this decision, as stated in the Order.
[Attachment] List of persons who selected the Plaintiff: omitted
Justice Roh Tae-ak (Presiding Justice), Justice Kim Jae-hyung, Justice Min Yu-suk (Justice in charge), Justice Lee Dong-won