사립학교 직원의 육아휴직수당의 헌법적 보장에 관한 소고

Clerical personnel of private school are in a legal blind spot where they cannot receive child care leave allowance unless specified in the articles of association or rules of individual private schools. Accordingly, it has been investigated that a significant number of clerical personnel of private school do not receive child care leave allowance. Meanwhile private school teachers can receive child care leave allowance as child care leave allowance from private schools in 2020 with the Enforcement Decree of the Private School Act was revised. At first glance, the child care leave allowance for clerical personnel of private school is arbitrary and has a beneficial appearances but it has a fundamental social security character. In this article we looked at legal remedies as an example of clerical personnel of private school who do not receive child care leave allowance. When considering the status of clerical personnel of private school as workers, first of all, it is possible to request private schools to pay child care leave allowance to private school through collective agreements and labor-management council systems under the Labor Act. However, this is an individual and limited method, and it is considered to have limitations. Therefore, the problem of not being guaranteed child care leave allowance was regarded as an infringement of basic rights, and a plan to receive rights relief by filing a constitutional complaint was reviewed. In this case, Article 24-6 of the Enforcement Decree of the Private School Act, which stipulates child care leave allowance only for teachers among private school faculty members, may be the provisions subject to judgment. At this time, the claimant will claim the infringement of equal rights through discrimination against private school teachers as a comparative group, in addition to the infringement of social rights such as the right to live a human life and maternal protection. However, it can be said that it is difficult to derive specific obligations of the state in the social rights examination for child care leave allowance. Therefore, the thesis was developed by focusing on the evaluation of equal rights for discrimination between private school teachers and clerical personnel regarding the child care leave allowance under the provisions of the judgment. According to the constitutional legalism of teacher status, it can be argued that the difference in the payment of child care leave allowance under the provisions of the judgment is reasonable. However, this is not valid in terms of the purpose and legal nature of paying child care leave allowance. This is because the social risks of childbirth and childcare and the need to preserve income during parental leave are not different for teachers and clerical personnel. In addition, it is difficult to recognize the inevitability of discrimination and the balance of legal interests even when strict screening criteria are applied to the examination of equal rights. Therefore, discrimination in the provisions of the judgment that specify the standards for payment of child care leave allowance only to teachers among clerical personnel of private school does not secure constitutional legitimacy. So it is reasonable for the Constitutional Court to judge this provision as an infringement of equal rights due to discriminatory treatment and make a constitutional nonconformity decision.