“Requirements for termination of leave and illegal benefits are different.”
#Mr. A, who is raising a 4-year-old child, planned to visit his sister’s house in the United States for a month. This was possible because the parents promised to come to Mr. A’s house and take care of the child for a month. Then, I suddenly became curious about whether there was a problem with receiving childcare leave benefits. The premise of childcare leave is childcare, but a situation has arisen where you cannot take care of your child for a month.
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As there is an atmosphere of social encouragement for the parental leave system, the number of users of parental leave is increasing, and at the same time, illegal benefits are also increasing. Illegal receipt of benefits includes receiving childcare leave benefits by submitting false documents even though the employee did not actually take leave. According to data received from the Ministry of Employment and Labor by the office of People Power Party lawmaker Kim So-hee on the 12th, the number of cases of fraudulent receipt of parental leave benefits more than tripled from 144 cases in 2015 to 484 cases last year. The amount of illegal benefits increased more than 10 times from 260 million won to 2.729 billion won during the same period.
In cases where workers and employers collude to submit false documents, it is clearly an illegal payment, but in cases like Mr. A, it may be unclear whether the payment is illegal. According to Supreme Court precedent, cases like Mr. A do not constitute illegal receipt of money. In 2017, the Supreme Court sided with the worker in a dispute between a worker who left his child with his parents’ home for eight months while on childcare leave and stayed overseas, and the Labor Office, ordering the worker to return childcare leave benefits.
According to the current Enforcement Decree of the Equal Employment Opportunity Act, ‘if a person does not live with an infant or a child and does not contribute to the child’s upbringing’, it is a condition for termination of childcare leave. The Enforcement Decree stipulates that if such a reason occurs, the employer must be notified of this fact within 7 days.
However, the court at the time ruled that although it was reasonable to require employees to return to work based on the enforcement ordinance, it was not appropriate for this regulation to be used as a basis for illegal receipt of childcare leave benefits. The fact that the worker did not apply for childcare leave solely for the purpose of leaving the country, and that not living with the child under the law is not a reason for salary restriction, were also grounds for not receiving illegal benefits. This means that in order to receive an illegal supply, there must be an act that can be considered fraudulent according to social norms, such as falsehood, deception, or concealment. In addition, it was said that even if benefits were received even though the requirements were not met, it could not be considered illegal.
Noh Ho-chang, a professor at the Department of Legal and Police Administration at Hoseo University, said of this precedent, “It is a meaningful ruling as it allows the plaintiff to escape the stigma of illegally receiving benefits and also to avoid dispositions such as additional collection,” adding, “However, the legal value of cohabitation in child support or cohabitation does not matter.” “If standards for judging the degree of obligation had been presented, it would have been more helpful in the future policy operation of parental leave benefits,” he explained.
If an illegal payment is discovered, payment of benefits will be restricted and all benefits received must be returned. Additionally, up to five times the amount of illegal benefits may be additionally collected. You may be subject to up to five years in prison or a fine of up to 50 million won.
Reporter Lee Ji-min aaaa3469@segye.com
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Source: www.segye.com
