A petition was filed by Ms. Lee, 46, a public servant in May of 2005 with the National Human Rights Commission (NHRC) against her employer. She stated, 「I am responsible for my children as guardian since the divorce. I had been getting an educational allowance for my children from my employer. However, after sending my children to live with a relative because of education and changing my address on my resident registration, my employer told me that according to the Regulation on Allowances for Public Employees, I was not eligible for the education allowance and must return the total amount of money I received for the period when I was not living with my children.」 In response, NHRC recommended the Chairman of the Civil Service Commission to improve the Regulation on Allowances for Civil Servants so that divorced female public employees who have children who are not under the same resident registration may receive the educational allowance.
As NHRC considered the case, Article 11 of Regulation on Allowances for Public Employees stipulates that 「educational allowances for children shall be granted to public employees whose children go to elementary school (limited to public officials working abroad), middle or high school, and whose children are under the same family register of the divorced mother.」 Based on the regulation, the complainant was divorced and her children were registered under their father’s family register. Therefore, she is not eligible to be granted the allowance.
In response, the Civil Service Commission argued as follows.
(1) According to Article 11, divorced public employees can receive the educational allowance, but if they have children who are neither under the same family register nor resident registration, employers shall not grant the allowance.
(2) Educational allowance is to cover the actual cost paid for their children in elementary, middle and high school. So, it should consider the effect on the national budget.
(3) Originally in 1981 when the regulation was established, only 「public employees whose children are under the same family register」 could receive the allowance. However, to prevent discrimination against divorced females, the regulation was revised to allow divorced females to get the allowance should their children be confirmed to be registered under the same resident registration. This is a minimum requirement to determine whether the children are the public employees’ children.
(4) If the regulation does not include the requirement that the children shall be under the same family register of the relevant public employee, the family relation should be practically verified to confirm the actual relation. But it would be a waste of administrative energy and practically impossible to do so. Hence, the relationship shall be verified by official documents following the administrative procedure.
However, NHRC also concluded that:
(1) Civil Law was revised to abolish the ‘hoju system’, a patriarchal system where only a man is allowed to be the head of a family, and will be enforced beginning January 1st in 2008.
(2) Until December 31st of 2007, children, in principle, must be filed under their father’s family register.
(3) In cases where the father is a foreigner, children can be registered under their mother’s family register.
(4) If parents divorce, their sons and daughters are left on their father’s register. Therefore, most divorced male public employees can easily meet the minimum requirement of the children being 「under the same family register」 while their counterparts cannot. Also, the requirement of 「under the same resident registration」 is an additional condition only for divorced female public employees.
All in all, it enables divorced men to be eligible of both requirements for the educational allowance regardless of whether they live with the children. However, female officials are allowed to be eligible for the allowance only when it is documented that they live with their children, which is consequently discrimination.
In addition, based on the current family register system, (1) children are listed under their father’s family register regardless of who raises the children when a couple divorces. So the ‘under the same family register’ requirement is not sufficient to prove who actually is raising the children. (2) Sometimes, children of women public employees reside separately from their mother when necessary. In this situation, they can not be under the same family resident registration of their mother. Therefore, only the resident registration is hardly sufficient to verify who is practically raising the children.
Therefore, NHRC concluded that given the rationale of the family register and resident registration systems, to achieve the purpose of ‘verifying who raises the children’, a health insurance card, or a decision from the court that allows divorce and appoints the guardian and other materials should be added. In contrast to the argument of the Civil Service Commission that 「it would be waste of administrative power and practically impossible to do so」, NHRC judged that it would be possible if applicants for the educational allowance submit related documents for verification.
Hence, NHRC recommended the Chairman of the Civil Service Commission to improve the Regulation on Allowances for Civil Servants because the two requirements for 「divorced female public employees’ children under the same family register or under the same resident registration」 are unreasonable and infringe on the right to equality. –End-
