여성공무원의 육아휴직 중 출산휴가를 위한 복직의 인정 여부 - 대법원 2014. 6. 12. 선고 2012두4852 판결 - (Judicial precedent commentary : Justification of female educational officials`s reinstatement during parental leave)

서지정보

· 발행기관 : 노동법이론실무학회
· 수록지 정보 : 노동법포럼 / 13호 / 225 ~ 257페이지
· 저자명 : 오세웅

초록

Original trial and Supreme Court differ in their rulings in “Is the school’s support to reinstatement application of female educational officials during their parental leave appropriate?” Primary reason for this is about the effects of work manuals and parental leave processing guidelines, which are administrative rules. While the original trial saw these as appropriate evidence for preventing reinstatement, Supreme Court judged that these are only work guidelines and cannot be any evidence to restrict educational officials’ rights to be reinstated. Secondly, about ‘When the reason for layoff is gone’ regulated by government official relation law, while original trial judges that objective reasons for extinction can only be recognized, Supreme Court says that both objective and subjective reasons can be recognized. However, if we think about what layoff system means to government officials and consider the specificity of government officials, it might be appropriate to restrict layoff system to objective reason, just like original trial did. But, maternity leave because of a birth of another child during childcare leave can be considered as an objective reason, not a subjective reason. Lastly, when being reinstated due to extinction of reasons for childcare leave, reinstatement order basically doesn’t have a power of binding acts and therefore, it is impossible to restrict reinstatement period. Exceptionally, it may be possible if the need of public interest is very important. As recognized reasons for reinstatement restriction by original trial, the guarantee of right to study and the guarantee of right to labor not only can be achieved inside rights of educational officials but also can be achieved through modification of related policy by administrative system. So, just like how Supreme Court judged, this measure for restricting educational officials’ reinstatement period is an excessive restriction of rights.

영어초록

Original trial and Supreme Court differ in their rulings in “Is the school’s support to reinstatement application of female educational officials during their parental leave appropriate?” Primary reason for this is about the effects of work manuals and parental leave processing guidelines, which are administrative rules. While the original trial saw these as appropriate evidence for preventing reinstatement, Supreme Court judged that these are only work guidelines and cannot be any evidence to restrict educational officials’ rights to be reinstated. Secondly, about ‘When the reason for layoff is gone’ regulated by government official relation law, while original trial judges that objective reasons for extinction can only be recognized, Supreme Court says that both objective and subjective reasons can be recognized. However, if we think about what layoff system means to government officials and consider the specificity of government officials, it might be appropriate to restrict layoff system to objective reason, just like original trial did. But, maternity leave because of a birth of another child during childcare leave can be considered as an objective reason, not a subjective reason. Lastly, when being reinstated due to extinction of reasons for childcare leave, reinstatement order basically doesn’t have a power of binding acts and therefore, it is impossible to restrict reinstatement period. Exceptionally, it may be possible if the need of public interest is very important. As recognized reasons for reinstatement restriction by original trial, the guarantee of right to study and the guarantee of right to labor not only can be achieved inside rights of educational officials but also can be achieved through modification of related policy by administrative system. So, just like how Supreme Court judged, this measure for restricting educational officials’ reinstatement period is an excessive restriction of rights.

참고자료

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