[Plaintiffs, Appellees] Plaintiff 1 and 1 other (Attorneys Kim Hyeong-dong and 4 others of Law Firm Jungang, Counsel for the Plaintiffs)
[Defendant, Appellant] Head of Anyang Branch Office, Jungbu Regional Employment and Labor Office
[Judgment Below] Seoul High Court Decision 2015Nu35415 decided July 9, 2015
[Order]
The appeal is dismissed in its entirety. The costs of the appeal are to be borne by the Defendant.
[Reasoning]
The grounds of appeal are examined.
1. As to the First Ground of Appeal
A. (1) Article 70(2) of the Employment Insurance Act (고용보험법) (hereinafter “the instant provision”) is a mandatory provision intended to promptly settle the legal relationship concerning childcare leave benefits. In order to receive childcare leave benefits, an employee must apply for payment to the head of the competent employment security office within the period prescribed by the instant provision (see Supreme Court en banc Decision 2018Du47264 decided March 18, 2021).
(2) Where an employee has applied for childcare leave benefits and, having been recognized as an eligible recipient by the head of the competent employment security office, has received benefits, but the amount received falls short of the legitimate amount of childcare leave benefits, the employee may additionally claim from the head of the competent employment security office the difference between the legitimate amount of childcare leave benefits and the amount already received, at any time before the extinctive prescription period for the right to claim childcare leave benefits expires, and the instant provision does not apply to such additional claims. The starting point of the extinctive prescription period for the right to claim childcare leave benefits, for purposes of calculating the period within which such additional claim may be made, should be deemed to be the date on which the employee was served with the decision to pay benefits with respect to the initial application for childcare leave benefits; provided, however, that where the head of the competent employment security office had already made a decision to pay childcare leave benefits, prior to the end of the childcare leave, pursuant to the employee’s application for installment payment of childcare leave benefits, the starting point should be deemed to be the date on which the entire period of childcare leave, as permitted and taken by the employee, ended (see Supreme Court Decision 2016Du59683 decided April 29, 2021).
B. According to the reasoning of the judgment below and the record, the following facts can be found: ① Plaintiff 1 took childcare leave, as permitted, from November 15, 2010 to November 14, 2011, and during that period received childcare leave benefits in ten installments; and ② before the expiration of three years from the end date of the childcare leave period, which is the extinctive prescription period for the right to claim childcare leave benefits under Article 107(1) of the former Employment Insurance Act (구 고용보험법) (before amendment by Act No. 16269 of January 15, 2019), Plaintiff 1, on January 3, 2014, applied to the Defendant for additional payment of the difference between the childcare leave benefits calculated by including part of the amounts equivalent to bonuses, long-term service allowances, meal subsidies, and transportation subsidies (hereinafter “bonuses, etc.”), and customized welfare card points (hereinafter “welfare points”), in ordinary wages, and the benefits actually received during the childcare leave period.
C. Examining the above factual relationship in light of the legal principles set out above, although it was inappropriate for the court below to characterize the instant provision as a directory provision, its conclusion that the right to claim additional payment of childcare leave benefits had not been extinguished by prescription is justified. There is no error in the judgment below, as alleged in the grounds of appeal, in misapprehending the legal principles concerning the extinctive prescription of the right to claim childcare leave benefits.
2. As to the Second Ground of Appeal
A. The court below determined that the amounts equivalent to welfare points paid by the Korea Workers’ Compensation and Welfare Service to executives and employees, including the Plaintiffs, in accordance with certain standards under the selective welfare system, constituted ordinary wages. However, considering comprehensively the statutory basis and background of the introduction of the selective welfare system, and the characteristics of welfare points, including that their use is restricted and that they lapse if not used within one year, as can be known from the reasoning of the judgment below and the record, it is proper to hold that welfare points do not constitute wages under the Labor Standards Act (근로기준법), and accordingly do not constitute ordinary wages (see Supreme Court en banc Decision 2016Da48785 decided August 22, 2019). Therefore, it was erroneous for the court below to hold that the amounts equivalent to the Plaintiffs’ welfare points constituted ordinary wages serving as the basis for calculating childcare leave benefits.
B. Nevertheless, according to the reasoning of the judgment below and the record, the court below revoked the instant disposition on the ground that it was unlawful not only in that the Defendant failed to include the amounts equivalent to welfare points, but also in that the Defendant failed to include bonuses, etc., in the ordinary wages serving as the basis for calculating childcare leave benefits; however, it can be seen that, based solely on the materials submitted up to the close of argument in the court below, it is not possible to calculate the amount of childcare leave benefits by adding only bonuses, etc., excluding the amounts equivalent to welfare points, to ordinary wages. Since a court does not bear an obligation to actively calculate, of its own accord, the legitimate amount of benefits where the materials necessary for calculating the ordinary wages serving as the basis for calculating benefits have not been submitted, the instant disposition, which rejected the Plaintiffs’ application for additional payment of the unpaid amount on the premise that they had received benefits falling short of the legitimate amount of childcare leave benefits, must be revoked in its entirety (see, e.g., Supreme Court Decision 2015Du51934 decided October 31, 2019). Accordingly, notwithstanding the error of the court below noted above, its conclusion revoking the instant disposition in its entirety is justified.
3. Conclusion
Therefore, the appeal is dismissed in its entirety, and the costs of the appeal are to be borne by the losing party. This decision is rendered by the unanimous opinion of the Justices participating in the judgment, as set forth in the Order.
Justice Kim Seon-su (Presiding Justice), Lee Ki-taek (Justice in charge), Park Jeong-hwa, Roh Tae-ak