행정법령상 ‘신청기간’ 관련 판례 분석 및 법제적 시사점

Abstract

Administrative statutes contain many provisions regarding the period. However, it is not clear what these terms and conditions mean and what effect they have. On March 18, 2021, the Supreme Court's ruling on the application period for parental leave benefits came out. The issue in this ruling was whether the legal effect of the parental leave benefit application period was a compulsory provision or an instructional provision. Legal regulations are usually divided into mandatory regulations and voluntary regulations, focusing on legal effects. Administrative law uses the term instructional regulation instead of discretionary regulation. It is a matter of statutory interpretation to distinguish whether the term provision is a prescriptive provision or a compulsory provision. The results of analyzing Supreme Court precedents regarding whether the period of administrative statutes are instructive or compulsory are as follows. First, if the application period of the party is directly stipulated in the law, it is considered a mandatory provision. Second, if the application period is stipulated in subordinate statutes such as the Presidential Decree, and if there is a legal delegation, it is regarded as a compulsory regulation, but if there is no legal delegation, it is regarded as an instructional regulation. Third, if the administrative agency's business processing period is stipulated, it is regarded as an instructional regulation regardless of the form of the law. Article 70 (1) 3 of the Employment Insurance Act, which was amended on July 21, 2011, stipulates the application period for parental leave benefits. In addition, Paragraph 2 was newly established in Article 70 to stipulate it in a procedural form, and the previously deleted content was moved and stipulated. In the lawsuit for refusal to pay parental leave benefits, the first trial dismissed the plaintiff's claim, and the second trial cited the plaintiff's claim, considering the application period to be an instructional rule. However, the Supreme Court reversed the judgment of the lower court. The reason is that there is no case in which the Supreme Court precedent has ruled that the statutory provision stipulating the application period for the right to claim benefits under public law is a rule of instruction. The Supreme Court seems to have consistently judged it as a mandatory provision. On the other hand, this ruling divided the right to receive social security benefits into abstract forms and concrete forms, and the legislature determined the exercise period of each right through policy. As a legal implication of this ruling, the author suggested several ways to legislate the application period.