[Plaintiff-Appellant] LbnB Partners

Attorney Lee Dong-won, Counsel for the defendant-appellant

Law Firm LLC et al.

Attorney Kim Jong-young

2. The costs of lawsuit shall be borne by the Plaintiff.

(a) Status of a party;

1) On December 27, 2007, the Plaintiff was first appointed as a local administrative secretary of Grade II on 11, 28, 201, and thereafter, was promoted to Grade V administrative officials on December 27, 2007, and Grade IV administrative officials on October 11, 2013 through promotion from February 11, 2017 to March 4, 2018, and served as the head of the office of the office of the Secretariat of the Gwangjin-gun District Committee in Seoul Special Metropolitan City from March 5, 2018 to August 6, 2018. The Plaintiff was subject to a non-assignment order on August 7, 2018, and was ordered to serve as the head of the office of the Dong-gun District Committee’s Secretariat in the administrative planning office from March 5, 2018 to August 31, 2018, and was ordered to serve as the administrative secretary of the Committee from March 20, 2018 to the planning office.

2) The Committee was established under the President around July 25, 201 in accordance with the Act on the Establishment and Operation of B Committees, enacted on July 25, 201, for the purpose of protecting people from F disasters due to production and use of E and contributing to public safety and environmental conservation, and was established under the jurisdiction of the President around 2011, and was currently established under the jurisdiction of G according to the amendment of the same Act in 2013, and

B. The plaintiff's heavy disciplinary decision and notification of disposition

1) The Defendant: (a) violated the duty of good faith under Article 56 of the State Public Officials Act and the duty to maintain the dignity under Article 63 of the same Act, and committed a sexually meaningful speech and behavior against its employees 17 times in total; (b) requested employees to engage in private labor once every four times as indicated in attached Table 2, and used special food expenses on the weekend and holiday six occasions, and used government vehicles for private purposes three to four times each time; and (c) there was a specific disciplinary reason, such as “the Plaintiff demanded a disciplinary resolution against the Plaintiff on November 12, 2018; and (d) the Central Disciplinary Committee made a request for a disciplinary resolution against the Plaintiff; and (e) requested a decision to impose a disciplinary surcharge of KRW 13,000,000.

2) On February 15, 2019, the Central Disciplinary Committee decided to impose a surcharge of KRW 133,00 as a result of the Plaintiff’s disciplinary action such as demotion. On March 4, 2019, the Defendant issued a disposition of imposition of KRW 133,00 (hereinafter collectively referred to as “instant disposition”) to the Plaintiff on March 4, 2019.

Disciplinary reasons on the violation of the duty to maintain dignity.

A person shall be appointed.

A person shall be appointed.

Disciplinary reasons on the "violation of Duty of Good Faith"

A person shall be appointed.

A person shall be appointed.

(c) Procedures for examining a petition;

The Plaintiff filed a petition review with the Ministry of Personnel Management on March 15, 2019, but the petition for review was dismissed on April 30, 2019.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence Nos. 16 through 19, 21 through 24, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition shall be revoked as it is unlawful due to the absence of grounds for disciplinary action and deviation and abuse of discretionary power.

B. Relevant statutes

[Attachment] The entry of "related Acts and subordinate statutes" is as follows.

C. Judgment on the non-existence of disciplinary reasons

(i) Whether there exists a cause for the violation of the duty to maintain dignity under the attached Table 1.

A) The plaintiff's assertion

① The Plaintiff did not engage in any speech or sexual harassment with the sexual meaning contained in the victim H (which refers to the male gender; hereinafter referred to as "victim 1"), I (which refers to the "victim 2"), L (which refers to the female, hereinafter referred to as "victim 3") and Ma (which refers to the "victim 4") who is an employee belonging to the entrusted agency of the B Committee and Ma (which refers to the "victim 4"). In addition, each statement made by the victim 1 through 4 (hereinafter referred to as "victims") is extremely low in credibility and it is difficult to believe that each statement made by the victim 1 through 4 (hereinafter referred to as "victims") is extremely low, and even if some of the above grounds for disciplinary action are asserted by the victims, it does not constitute physical and verbal sexual harassment, because it is difficult to view the Plaintiff's speech and behavior as a degree to cause sexual humiliation or aversion. Therefore, even if there is no grounds for disciplinary action in this part, the Defendant's disposition of this case was unlawful by misapprehending the facts and legal principles.

B) Specific determination

In light of the following circumstances, the evidence mentioned above, Gap evidence Nos. 5, 9, Eul evidence Nos. 1 through 15, 28, 29, 30, 32 through 37 (including each number; hereinafter the same shall apply), witness H (victim 1), I (victim 2), and T’s testimony comprehensively considering the overall purport of the pleadings, the plaintiff’s act of entering the acts as stated in Table Nos. 17 times in total constitutes sexual harassment that causes sexual humiliation or aversion, or an inappropriate statement that causes emotional harm to the victims, and the plaintiff’s act constitutes a ground for disciplinary action that the plaintiff violated the duty to maintain dignity under Article 63 of the State Public Officials Act. Accordingly, the disposition of this case is legitimate, and the plaintiff’s assertion disputing this is without merit.

(1) The credibility of each victim's statement

(A) The direct evidence supporting the grounds for disciplinary action against the Plaintiff is the only statement of the victims. The contents of the statement are identical to each specific violation described in Nos. 2, 3, 16, and 19 (see, e.g., the written request for a disciplinary resolution of No. 2, 16, and 19) as stated in the above Table Nos. 1 through 17, and there is no doubt that the credibility of the statements of the victims can be denied in light of objective facts at the time of each act of violation adopted and investigated by the court. In other words, the victim Nos. 1 and 5, Nos. 6 through 12, the victim No. 1, and No. 2, the victim’s statements are inconsistent with the victim’s statements, and the victim’s statements and statements cannot be seen as being inconsistent with the victim’s statements and statements to the extent that it is difficult to take into account the victim’s specific reasons for the victim’s sexual harassment before and after July 8, 2018 to the victim’s statements and statements No. 14.

(6) Even if there are some errors in the victims’ statements, such as the date, time, place, etc., due to the lapse of time, this is merely due to the limitation of memory, and as long as the victims have clearly stated the fact that there was a violation of the Plaintiff, the credibility of each victim’s statement is not suspected on the grounds of an erroneous statement, such as the date, time, place, etc.

(B) Other objective circumstances supporting the credibility or probative value of each victim’s statement are as follows. ① In the process of investigating the case of sexual harassment against the Plaintiff, Dong members of the victims were present several statements or written confirmations to the effect that they could not have observed sexual harassment against the victims (such as Twits). However, it is reasonable to accept such statements from the point of view that “the victim could not be seen for any other reason,” or that they would not be forgotten with the limit of memory,” and the witness sent 1 to the head of the office of the office of 20 years before and after the Plaintiff’s request for investigation into the victim’s sexual harassment against the Plaintiff. It appears that it was difficult for the Plaintiff to accept the statements from the victim’s victim’s victim’s victim’s victim’s victim’s victim’s victim’s victim’s victim’s victim’s victim’s victim’s victim’s victim’s victim’s victim’s victim’s victim’s victim’s victim’s victim’s victim’s victim’s victim’s victim’s victim’s victim’s 1 and victim’s victim’s victim’s victim’s victim’s victim’s victim’s victim No.

(2) Whether the case constitutes sexual harassment

(A) The term “sexual harassment” refers to an act of a State agency, local government, person engaged in a public organization, such as a public organization, a school, a public service-related organization, etc., employer, superior or worker ① using his/her position or having the other party feel sexual humiliation or aversion due to sexual words, actions, sexual demands, etc. in relation to his/her duties, etc.; ② the other party puts his/her disadvantage on the ground that he/she does not comply with the sexual words, actions, etc. or expresses his/her intent to grant him/her on the condition that he/she does not comply therewith (see, e.g., Article 3 subparag. 2 of the Framework Act on Gender Equality; Article 2 subparag. 2 of the Employment Opportunity and Work-Family Balance Assistance Act; and Article 2 subparag. 3d, etc. of the National Human Rights Commission Act). Here, “sexual words and actions” refers to physical, verbal, and visual acts related to physical relationship between men and women or the physical characteristics of men or women, and objectively, in light of the sound common sense and practice.

Although sexual harassment does not necessarily require a sexual motive or intent to be established, in light of the specific circumstances, such as the relationship between the parties, place and situation where the act was committed, the other party’s explicit or presumed response to the act, the content and degree of the act, whether the act was one-time or short term or continued to exist, etc., the act of allowing the general and average person in the same position as the other party to feel sexual humiliation or aversion, and thereby, it should be objectively recognized that the other party to the act has caused sexual humiliation or aversion (see, e.g., Supreme Court Decision 2005Du6461, Jun. 14, 2007).

(B) The victims feel her consistent with the Plaintiff’s act of violation as indicated in the Plaintiff’s Table 1, i.e., sexual displeasure, destruction, shameing, shameing, and singing. The victims took place with sexual harassment. A female was sexually committed. The female was considered as sexual harassment. The Plaintiff’s sexual humiliation was sexually perceived as an infringement of private life. The Plaintiff’s sexual harassment was considerably dissipious and emotional distress. The Plaintiff’s sexual intercourse was considerably hysh, and was thought to have no sexual intent, but with no sexual desire, and was unable to emotionally and mentally. In light of the legal principles as to the definition of sexual harassment and the requirements for establishment thereof, it is reasonable to view the Plaintiff’s act of violation as indicated in Table 1, even if the Plaintiff did not have sexual desire and sexual humiliation, and even if it did not have sexual harassment or sexual humiliation, it constitutes an objective sexual harassment, and thus, it would be reasonable to deem that the victims did not have objectively and objectively sexual harassment.

On October 29, 2018, an external expert who analyzed and examined the Plaintiff’s sexual harassment case also presented his opinion on October 29, 2018 that “the Plaintiff’s misconduct against the victim constitutes sexual harassment and requires strong heavy disciplinary action.” On the other hand, it is difficult to evaluate the Plaintiff’s misconduct in the table 1 as merely a minor farming room based on mere negligence or progress that does not cause any mental damage to the other party (On the other hand, there was a judgment that the Plaintiff’s act against the victim 2 listed in the No. 7 No. 1 of the table 1 does not constitute sexual harassment in the procedure of resolution and appeal examination. However, the above act also constitutes a ground for disciplinary action against the violation of the duty to maintain dignity as a public official, and the victim 2 stated that the Plaintiff’s physical contact with the Plaintiff, in particular, caused excessive physical contact with the Plaintiff, and that the sexual harassment and sexual assault Review Committee did not constitute a disciplinary action against the Plaintiff’s sexual harassment in the future.

(3) Specific grounds for rejecting the Plaintiff’s assertion

(A) The Plaintiff asserts to the effect that “the victim 1 reported sexual harassment in bad faith while absent from office.” However, the victim 1 did not work for most of the period from July 26, 2018 to August 9, 2018, and it was merely a sick leave and leave, and there is no circumstance that the victim 1 reported to the Plaintiff to cause harm and injury to the Plaintiff while absent from office without permission. Therefore, the above assertion is without merit.

(B) On May 23, 2018, the Plaintiff asserts that at around 18:20 on May 23, 2018, the Plaintiff did not take action against the victim 1 at the time of the violation. However, on May 23, 2018, the Plaintiff approved the internal official document called "payment of government purchase cards" at around 17:56 on May 23, 2018, and on the same day, at around 17:56 on May 23, 2018, the Plaintiff read the electronic document stating that the above approval was a substitute decision by another person, and at around 17:57, the document stating that the government vehicle was a government-managed vehicle’s office, and at around 18:09, the record stating that the government-managed vehicle was issued the door of the D regional office, and therefore, the Plaintiff’s violation in Table 1) was within the victim 1, and thus, the above assertion is without merit.

(C) The plaintiff asserts that there is no action such as the No. 1 No. 4 of the table 1.

However, from May 2, 2018 to July 13, 2018, the victim 1 exercised continuous sexual harassment and unfair business instructions from the Plaintiff, and on July 26, 2018, when the Plaintiff demanded the Plaintiff to open to the public and make a request, the Plaintiff continues to be subject to the victim 1 on the premise that all of his misconducts are recognized, including the acts described in No. 4 of Table 1, on the premise that the Plaintiff’s act of sexual harassment continues to be recognized. On the other hand, the Plaintiff refused the victim 1’s disclosure apology by taking out that this problem is widely known within the workplace, and eventually, the victim 1 was reported to the officer in charge of sexual harassment response in the workplace. In light of the contents of the victim 1’s statement and the details of the report as above, the above argument is without merit.

(ii) Whether there exists a cause for 'violation of duty of good faith' as provided in Table 2.

A) The plaintiff's assertion

① The Plaintiff did not directly instruct the victim 1 to move the vehicle, and it was difficult to find out the relevant circumstances due to the narrow parking lot circumstances of the company house. The victim 1 voluntarily asked the company house management office to cooperate with the moving of the vehicle, etc., and it cannot be deemed that the victim unfairly demands labor services. ② Although the Plaintiff used 133,00 won through six times as special meal expenses, the head of the department or higher has not been in excess of emergency work procedures or systems, and the Plaintiff voluntarily used special food expenses while waiting for emergency, most of the P company employees belonging to the P company, local village head, etc., using special food expenses. In light of the fact that the Plaintiff used the above act as special food expenses, it is difficult for the head of the office or the head of the office of the office of the office of the Gu to use the above act as special food expenses, and it is difficult for the Plaintiff to use the above act as special food expenses for the head of the office of the office of the office of the Si/Gun/Gu.

B) Specific determination

In light of the following circumstances, the above evidence and evidence Nos. 26, 27, 31, 37, and 42, which are acknowledged by comprehensively considering the contents of the evidence and the purpose of the entire pleadings, it is recognized that the Plaintiff committed an unlawful act, such as ordering the victim 1 to engage in unfair private labor, unlawfully using special food costs, or using government vehicles for private purposes, and this part of the grounds for disciplinary action is sufficiently recognized as violating the duty of good faith under Article 56 of the State Public Officials Act. Accordingly, the above premise is legitimate, and the Plaintiff’s assertion disputing this is without merit.

(1) The Plaintiff also recognizes most facts about the misconduct described in Table 2 as a substitute for the Plaintiff. This is also consistent with objective circumstances that can be inferred in light of the following: (a) details of the use of a unique food service card including the victim’s consistent statements; (b) details of the Plaintiff’s access to the vehicle of the headquarters; (c) text messages sent by the Plaintiff to the victim 1; (d) guidelines for budget and fund operation plans in 2018; and (e) details

(2) With respect to the Plaintiff’s misconduct listed in No. 2 No. 1, the Plaintiff asserts that “the Plaintiff requested simple requests or inquiries from the victim 1, who is in charge of clerical services, due to personal friendship.” It is reasonable to see that the Plaintiff’s act constitutes an unfair order by taking into account the following: (i) the victim 1 was in a subordinate position that makes it difficult for the victim 1 to reject the Plaintiff’s request or request; (ii) the parking problem of an individual vehicle in the company house constitutes an unfair order by taking advantage of superior position when it is irrelevant to public affairs; (iii) the content and delivery time of the Kakao Stockholm message sent by the Plaintiff to the victim 1 on May 10, 2018; and (ii) the Plaintiff’s ordinary words and attitudes, etc. were clearly revealed that it constitutes an unfair order by taking into account the fact that the Plaintiff’s act constitutes an “private vehicle without any personal influence, such as the removal of the Plaintiff’s personal vehicle or his/her superior’s personal order.”

(3) We examine the plaintiff's misconducts Nos. 2 in the 2018. According to the guidelines for the execution of the budget and fund operation plan for the year 2018, "the plaintiff, who has worked for more than two hours before the start of regular work hours or worked for more than two hours after the end of work or on holidays, shall be paid a fixed meal allowance. The plaintiff, who has served as a public official for 27 years, has been well aware of the above provisions, including the public official's code of conduct and the rules of service. However, according to the above guidelines, although the plaintiff, who is a class 4 library, failed to meet the requirements and qualifications for the payment of special food costs, he could not be seen as being aware of the fact that he used the above provision of public opinion and disciplinary surcharge for more than 13,00 won in total for more than 6,000 won on Saturdays and holidays (the plaintiff can not be seen as having used the above provision of public opinion and disciplinary surcharge for more than 20 times on his own purpose.

(4) On August 9, 2018, with respect to the illegal use of 3 official vehicles listed in the table 2, the Plaintiff used the 8th official vehicle to the auditor on June 8, 2018 without a business trip to the R Center, and parked the 3-4 official vehicle after the business trip to the S Terminal. This part of the facts was recognized to the effect that the Plaintiff used the 8th official vehicle for the 8th official vehicle for the purpose of using the 8th official vehicle for the purpose of using the 8th official vehicle for the purpose of using the 8th official vehicle for the 8th official vehicle for the purpose of using the 1st official vehicle for the 8th official vehicle for the 1st official vehicle for the 2nd official vehicle for the 2nd official vehicle for the 8th official vehicle for the 1st official vehicle for the 2nd official vehicle for the 1st official vehicle for the 2nd official vehicle for the 1st official vehicle for the 2nd official vehicle for the 1st official vehicle for the 2nd official vehicle for the 2nd official vehicle for the 0th official vehicle.

3) Sub-decisions

The grounds for the instant disposition that the Plaintiff violated the duty of good faith under Article 56 of the State Public Officials Act and Article 63 of the same Act are all recognized.

D. Determination on the assertion of deviation or abuse of discretionary power

1) The plaintiff's assertion

The instant disposition constitutes a violation of the principle of proportionality and the principle of equality, and thus constitutes a deviation or abuse of discretionary authority. In other words, (i) even though it is possible to achieve the public interest purpose of establishing public service discipline, such as suspension from office, much less than that of the Plaintiff’s rights, it violates the principle of necessity, and (ii) it does not constitute a violation of the principle of proportionality by causing enormous losses to the Plaintiff compared to the public interest to be achieved. (iii) The degree of irregularities committed by the head of the regional office rather than repeated for a long time, is weak, and even if the victims’ assertion is alleged, there was no physical sexual harassment, and some of the remarks related to sexual harassments were made. (iii) The other party to the remarks is a same-sex male. (iv) There was a total number of six times of awards such as the Prime Minister two times, one example of official commendation, and one time of official service, and there was no number of disciplinary actions such as one time during twenty-seven years of public service life.

2) Determination on the appropriateness of a disciplinary decision

A) Whether a disciplinary measure should be taken against a person subject to disciplinary action, who is a public official, is at the discretion of the person having the authority to take the disciplinary measure. However, if the person having the authority to take the disciplinary measure as an exercise of discretionary authority has considerably lost validity under the social norms, it may be deemed unlawful. In order to deem that a disciplinary measure against a public official has considerably lost validity under the social norms, the disciplinary measure should be determined by taking into account various factors, such as the content and nature of the offense causing the disciplinary measure, administrative purpose to be achieved by the disciplinary measure, criteria for the determination of the disciplinary measure, etc., and should be deemed that the contents of the disciplinary measure can be objectively and objectively unreasonable (see, e.g., Supreme Court Decision 2006Du19211, May 11, 2007).

B) Examining the aforementioned evidence and the following circumstances, which are acknowledged as comprehensively taking account of the contents of evidence and evidence Nos. 26, 31, 37, and 42 as well as the purport of the entire pleadings in light of the legal principles as seen earlier, it cannot be deemed that the disposition of this case is unreasonable objectively and objectively compared to the degree of the Plaintiff’s misconduct, or that there is no violation of social norms such as the violation of the principle of proportionality or the principle of equality, and thus, it cannot be deemed that the Plaintiff’s assertion is without merit.

(1) The plaintiff was in a superior position as an occupational leader and supervisor for the victims (the victim 4 may be deemed as a business entrustment relationship or a de facto subordinate relationship), and has a duty of care to prevent sexual harassment in the institution in a usual and ordinary manner so as not to adversely affect the employees' performance of their duties, and taking advantage of the victims' active refusal of or objection to their misconduct, so-called so-called occupational relationship where they cannot raise objections to the victims, the victims suffered emotional distress on 17 occasions in total for 5 consecutive months, such as the statements in Tables 1 and 2. Considering that the victims were sexual harassment or improper speech for 4 victims over 17 times in total, it is recognized that the victims were forced to give or demand the victims to provide private services, or disbursement of special food expenses for the weekends for private purposes and use the government vehicles for private purposes, and that they clearly violated the duty to maintain dignity under Articles 56 and 63 of the State Public Officials Act, such as the details and degree of the misconduct committed by the plaintiff, the possibility of the victims' sexual harassment in the workplace and the case.

(2) The public interest, such as the realization of a fair and clean public service society to achieve through the instant disposition, the establishment of a public official’s discipline, and the prevention of recurrence of similar cases, cannot be deemed to violate the principle of proportionality. Furthermore, even in other similar cases where a minor disciplinary measure is taken than the instant disposition, the specific grounds for the disciplinary measure and the circumstances of the case, etc. are different depending on each case. Furthermore, it is difficult to deem that the instant disposition violates the principle of equality, and thus has been abused and abused discretion. Furthermore, it is difficult to deem that the Plaintiff’s act of misconduct without any reasonable grounds, and that there was no choice of a harsh disciplinary measure so far as it goes against the standards generally applied to the Plaintiff’s act of misconduct.

(3) Even if some of the acts constituting several disciplinary causes listed in Table 1, Table 2 are not recognized, insofar as it is sufficient to recognize the validity of the lecture disposition against the plaintiff, which is premised on the plaintiff's act of committing the remaining disciplinary causes, it cannot be deemed unlawful even if the plaintiff's lecture is maintained as it is, and there is no circumstance to deem that the outside expert in the case of sexual harassment has abused the discretionary power assigned to the person having authority over the disciplinary action since he has considerably lost validity under the social norms (the outside expert in the case of sexual harassment also presented his opinion that the plaintiff's sexual harassment is in need of severe disciplinary action in the course of investigation).

(4) In light of the contents of the disciplinary cause as to the instant disposition, degree of violation, degree of damage and protected legal interest, etc., the Plaintiff’s act of violating the duty of good faith and the duty of keeping dignity as stated in Table 2 attached Table 1 may be deemed to fall under a case where the degree of violation is serious, or the degree of misconduct is weak, and the degree of violation is weak and gross negligence. In other words, it is difficult to view the Plaintiff as the head of the institution as the head of the institution as a case where there is an obvious intentional act in light of the circumstances and motive, etc., but it is difficult to view that the Defendant’s act of violating the duty of care and the duty of keeping dignity of the Plaintiff as stated in Table 2 falls under a disciplinary action of Article 2(1) [Attachment 1] of the former Enforcement Rule of the Disciplinary Decree of the Public Officials Disciplinary Decree (amended by Ordinance of the Prime Minister No. 1533, Apr. 30, 2019; hereinafter the same shall apply).

In addition, Article 4 (2) 4 of the Enforcement Rule of the Public Officials Disciplinary Decree provides that "no act of misconduct falling under sexual harassment shall be mitigated", and it is difficult to view that the defendant's disciplinary action significantly lacks objective rationality on the ground that the defendant did not reduce disciplinary action against the plaintiff.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Gin-ju

Judge Lee Professor

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.