2. B

[Judgment of the court below] Defendant 1 and 2 others (Attorney Lee Jong-chul, Counsel for defendant-appellant)

Law Firm Nasung (Attorney Na Sung-tae, Counsel for the defendant-appellant)

Attorney Yang Chang-hoon (Attorney Kim Jae-hoon) and Attorney Lee Sung-hoon

Permanent Residence, Maternation

2. The plaintiff A's claim is dismissed.

3. The costs of litigation incurred between the Plaintiff A and the Defendant shall be borne by the Plaintiff, and the costs of litigation incurred between the Plaintiff B and the Defendant shall be borne by the Defendant.

A. The Defendant is a school foundation that establishes and operates a D University, and the Plaintiffs are students attending the department E of D University on March 2, 2014 and has been enrolled until now.

B. The number of students admitted to the department E at D University in 2014 is 29. Among them, 28 students, including the plaintiffs, are female students, and f2) are only one female student. They, after entering the department, have opened a group hosting room of "G" (hereinafter referred to as "the instant hosting room") and used it until now.

C. On May 18, 2017, F and H (hereinafter “Plaintiffs”) reported sexual harassment to the D University Gender Equality Council to the effect that “nine other students, including the Plaintiff, have made a conversation with them continuously feel sexual humiliation at the instant hosting, and sexual harassment was committed by making them inappropriate remarks even in the ordinary sense.”

D. On May 24, 2017, the Deliberation Committee on Sexual Harassment (hereinafter “Deliberation Committee”) established pursuant to the provisions on the prevention and treatment of sexual harassment at D University’s sexual harassment (hereinafter “D University”) investigated and deliberated on the facts of misconduct reported as above, and decided on May 24, 2017 to request the convocation of the Disciplinary Committee for the remaining four persons including the Plaintiffs, excluding three persons in military service and two persons who informed H of the contents of the instant hosting. In response, the Plaintiffs filed an application for reexamination, but the Deliberation Committee dismissed it on July 11, 2017.

E. On September 13, 2017, the D University’s official university established a disciplinary committee pursuant to the provisions on student punishment, investigated and deliberated on the misconduct for which a request for disciplinary action was made, and decided on the common matters pertaining to the Plaintiff A’s disciplinary action of 200 hours of service order, 20 hours of service order to Plaintiff B, and delivery of apologys to the reporter, on the ground that the Plaintiffs’ act constituted sexual harassment against the student’s principal portion as a statement of sexual harassment. The Defendant was subject to disciplinary action against the Plaintiffs on September 22, 2017.

F. The Plaintiffs filed a petition for review on the above disciplinary action. Accordingly, the Disciplinary Review Committee re-examines the above disciplinary action, and then maintained 200 hours of service order for Plaintiff A, but changed the part regarding delivery of written apology to the public apology, and maintained the previous disciplinary action against Plaintiff B as it is. On October 19, 2017, the Defendant notified the Plaintiffs of the result of review (hereinafter “the changed disciplinary action in case of Plaintiff A and the previous disciplinary action in case of Plaintiff B”) (hereinafter “the disciplinary action”).

G. The detailed grounds for disciplinary action against the plaintiffs stated in the case report and review report prepared by the Gender Equality Council are as follows. Among them, the conversation before and after the pertinent remarks from the hosting room of this case are as shown in the separate sheet (hereinafter referred to as "the grounds for disciplinary action").

A person shall be appointed.

A person shall be appointed.

[Reasons for Recognition] The facts without dispute, Gap's evidence Nos. 1-3, 7, 8, Eul's evidence Nos. 1-4, 8, 9, 14, 16-20, 27, 33, 34, and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiffs

1) Claim of procedural defect

① The Defendant did not guarantee the Plaintiffs’ opportunity to attend, state their opinions, or present evidence in the process of deliberation and review by the Deliberative Committee, ② did not forcibly examine the details of the report without any explanation, thereby guaranteeing the Plaintiffs’ right to defense. ③ There is a problem of neutrality by attending the Disciplinary Committee and (3) the Disciplinary Committee did not provide the Plaintiffs with sufficient opportunity to explain. Accordingly, the instant disciplinary measure is procedural defect.

2) The non-existence of disciplinary reasons

The dialogues that the plaintiffs divided in the instant hosting room is often common among the other students, and the F took part in the situation where the Republic of Korea did not participate, and the reported F has used frequently sexual expressions in the instant hosting room. As such, the plaintiffs’ act cannot be deemed to constitute sexual harassment. Therefore, there is no ground for disciplinary action.

3) Grounds for deviation from and abuse of disciplinary authority

Considering that the part of the instant disciplinary action does not have any basis for the provision on student punishment, and that it infringes on the freedom of conscience of the Plaintiffs. Moreover, considering the degree of misconduct committed by the Plaintiffs and the degree of sexual expression together with F, the victim, the instant disciplinary action is null and void by abusing or abusing the discretionary power of disciplinary action.

B. Defendant

1) As to the deliberation and review of the Deliberation Committee, the Defendant notified the Plaintiffs of the deadline for submitting and closing their written opinions, and the Disciplinary Committee also provided the Plaintiffs with sufficient opportunity to vindicate. The composition of the Disciplinary Committee cannot be deemed to have violated any provision.

2) In light of various evidence submitted by the reporter, the explanation of other students, etc., it can be recognized that the Plaintiffs’ speech and the remarks in the instant hosting room had caused the victimized students to feel sexual humiliations or hates. As such, there are grounds for disciplinary action in the instant disciplinary action.

3) An order of apology is issued at an educational level, and it cannot be deemed that the instant disciplinary action deviates from or abused the Defendant’s discretion.

3. Determination

A. Whether procedural defects exist

1) The relevant provisions pertaining to the disciplinary action procedure are as follows.

Article 10 (Meeting) of the Regulations on the Prevention and Treatment of Sexual Harassment and Sexual Violence (3)(The meeting of the Deliberation Committee on the Handling of Sexual Violence) (In principle, the meeting of the Deliberation Committee shall be closed to the public.The No. 15 (Acceptance of Report and Referral to the Committee)

Article 18 (Investigation and Deliberation) (1) The head of the Center shall take all measures so that the parties to the case may be investigated in a free and fair environment at the request of the victim, and shall provide the victims with necessary matters, such as details of the investigation and treatment methods. (1) The Deliberation Committee may directly investigate and arbitrate the case by summons the persons related to the case (victim, perpetrator, witness), and if deemed necessary. (3) The Deliberation Committee may examine and arbitrate the case. (2) Whether the act of the reporting person falls under sexual harassment and sexual violence, and if there is an objection to the investigation and resolution of the Deliberation Committee, the head of the Center shall refer the case to the Deliberation Committee within the prompt time limit. (2) The head of the Center shall, at the request of the victim, respond to the consultation, and shall provide the victims with necessary matters, such as details of the investigation and treatment methods. (3) The Chairperson of the Deliberation Committee (hereinafter referred to as the "Committee") shall present the Committee's opinion within seven (7) days before the date on which the request for disciplinary action against the reporting person is made.

2) ① According to the above relevant provisions regarding the assertion, the deliberation and resolution of the Deliberation Committee shall be in principle closed to the public, but if deemed necessary, it shall be limited to the summons of the person related to the case, such as the perpetrator, etc. (which does not have any provision guaranteeing the attendance and statement of opinion as stated in the relevant provisions of the Disciplinary Committee). As alleged in the Plaintiffs, the Defendant did not notify the Plaintiffs of the schedule of the deliberation and reexamination, and did not provide the Plaintiffs with an opportunity to attend the deliberation and reexamination without notifying the Plaintiffs thereof.

In addition, according to the overall purport of the evidence No. 9, No. 3, No. 14, 18, and 24 and the overall purport of the arguments, the person in charge of the investigation of the instant case conducted an investigation by having an interview with the reporter, having an interview with the plaintiffs et al., and having an opportunity to submit the documents. Accordingly, it is recognized that the plaintiffs submitted a written statement stating their opinions in detail and the pertinent tling materials. Since the plaintiffs can present their opinions and submit materials supporting their arguments, it is reasonable to view that they exercised a substantial right to participate in the investigation. Therefore, it is not reasonable to deem that there is procedural defect in the process of not guaranteeing the right to defense, as alleged by the plaintiffs.

This part of the plaintiffs' assertion is not accepted.

(3) As to the assertion, the provision on student punishment only stipulates that “the composition of the disciplinary committee shall consist of not less than five but not more than seven members including the full-time faculty members of the university and the head of the department to which the student belongs,” and does not provide for the exclusion of the faculty who interviewed the reporter. Therefore, it cannot be deemed that there is any violation of any provision since the P professor who first reported becomes a member of the disciplinary committee.

In addition, there is no evidence that P professor decided the disciplinary action against the plaintiffs in a biased manner as alleged by the plaintiffs, and according to the statement of Gap evidence No. 9, the plaintiffs seems to have been sufficiently given an opportunity to attend the disciplinary committee and make statements. Therefore, it cannot be viewed that there is any defect as alleged by the plaintiffs in relation to the procedures of the

This part of the plaintiffs' assertion is rejected.

B. Existence of grounds for disciplinary action

1) Criteria for determination

Article 2(1) of the Regulations on the Prevention and Treatment of Sexual Harassment and Sexual Violence at D University provides that "The term "sexual harassment in this Regulation means that a public institution's employee, employer or worker causes sexual humiliation or aversion by using his/her position or sexual speech or behavior in relation to his/her duties, etc., or gives disadvantages in education or employment on grounds of non-compliance with sexual speech or behavior or other demands."

Meanwhile, “sexual speech and behavior, etc., which is a prerequisite for sexual harassment” means physical, verbal, and visual activity related to the physical relationship between men and women, or the physical characteristics of male or female, which may objectively cause the general and average person at the same location as the other party to feel sexual humiliation or aversion. In light of the sound common sense and practice of the community, it does not necessarily require sexual motive or intent to establish sexual harassment. However, 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, contents and degree of the act, whether the act was one time or for a short period, or whether the act continued, the other party’s general and average person at the same location as the other party objectively has caused sexual humiliation or aversion, and thus, it should be recognized that the other party has caused sexual humiliation or aversion. Therefore, the other party has not objectively expressed sexual harassment to the other party (see, e.g., Supreme Court Decision 2000Do16450, Jun. 24, 2019).

However, the Defendant: (a) deemed that the Plaintiffs’ act constitutes “a person who violated other school regulations or laws or who violated the principal portion of students” under Article 6(2)12 of the Regulations on the Punishment of Students; and (b) thus, even if the Plaintiffs’ act does not constitute sexual harassment, it is reasonable to deem that the Plaintiffs’ act constitutes grounds for disciplinary action.

According to these standards, the existence of disciplinary grounds for each plaintiff shall be examined as follows.

2) Plaintiff A

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

As such, the grounds for the disciplinary action against the Plaintiff A are recognized as the grounds for the disciplinary action, 2), 3, 7, and 10 of the total 11 grounds for the disciplinary action, and the remainder is not recognized as the grounds for the disciplinary action. Ultimately, the instant disciplinary action against the Plaintiff A has some grounds for the disciplinary action.

3) Plaintiff B

A person shall be appointed.

A person shall be appointed.

As such, the grounds for disciplinary action against Plaintiff B are not recognized. Therefore, the instant disciplinary action against Plaintiff B cannot be recognized as grounds for disciplinary action which caused the relevant disciplinary action, and thus, it shall be deemed null and void.

(c) whether a disciplinary decision is deviates or abused from discretion;

1) When a disciplinary measure is taken against a student subject to disciplinary action, what kind of measure should be taken is placed at the discretion of the person having the authority to take the disciplinary action, but it is recognized that the disciplinary measure taken by the person having the authority to take the disciplinary action has abused the discretion given to the person having the authority to take the disciplinary action, as it

If a disciplinary action against a student has considerably lost validity under the social norms, such disciplinary action is unlawful as it goes against the principle of proportionality or the principle of equality by selecting a disciplinary action which goes against the standards of general application of the same degree of flight without a reasonable ground, and thus violates the principle of equality in a case where the disciplinary action is deemed to be unlawful if it is sufficient to recognize the validity of the disciplinary action solely on the grounds of a certain disciplinary action, including the content and nature of the misconduct causing the disciplinary action, the purpose of the disciplinary action, and the criteria for the determination of the disciplinary action. Even if the exercise of the right to disciplinary action is left at the discretion of the head of a school, even if it goes against the public interest principles that should exercise the right to disciplinary action for public interest purposes, or is going against the standards of general application of the same degree of flight without a reasonable ground (see, e.g., Supreme Court Decision 200Da5255, Jun. 25, 2004).

2) Although the Defendant’s 11 disciplinary action against Plaintiff A is recognized only as four disciplinary actions, considering the following circumstances, even if only the above disciplinary action is considered, it cannot be deemed that the instant disciplinary action against Plaintiff A, which was taken by the Defendant against the Plaintiff, was a deviation or abuse of the right to discretion on disciplinary action. The Plaintiff’s assertion on this part is rejected.

① The Plaintiff asserts to the effect that the Defendant’s act of disciplinary action against the publication of a written apology without the grounds for the provision on student punishment constitutes abuse of discretionary authority. However, according to the provisions on the prevention and disposition of sexual harassment against D University, the deliberation committee chairperson may take measures deemed necessary for the perpetrator to prepare non-disclosure apologys, rebuttals, and respective documents (Articles 21(3) and 20), and other measures deemed necessary for the resolution of the case (Articles 21(3) and 20), while first taking a disciplinary action against Plaintiff A, the Defendant issued a written apology to the reporter while receiving the Plaintiff’s opinion in the review procedure, and changed the contents into the publication of the written apology. Furthermore, considering the need for adjustment of interests arising from the need for adjustment of interests for the student’s living together with the victimized student and the need for educational measures to grant the student reflect time, the instant disciplinary action cannot be deemed unlawful on the ground that the Defendant’s act of publication and publication of the written apology does not require the disclosure and publication of the Defendant’s authority (in lieu of this part).

② The provision on the discipline of students at D University provides that the type of discipline shall be determined as the probation, abandonment, inorganic, and expulsion from school: Provided, That if a person to be disciplined is deemed to have had a full attendance, the order of service, distinct from the disciplinary measure, may be issued (Article 5). In other words, an order of service chosen by the Defendant as the type of disciplinary measure in the instant disciplinary action, constitutes the most minor disciplinary measure prescribed by the relevant provision. On the other hand, most of the other hand, in the case of other schools where the issue of sexual harassment in group hosting is at issue as in the instant case, a non-organic or inorganic disciplinary measure heavier than a service order was taken. In other cases, the main content of the foregoing provision is a studio describing the physical relationship

In addition, there is a difference between the facts of the instant misconduct, the main contents of which are the evaluation of simple sexual stories and appearance, and considering these circumstances, the defendant seems to have taken disciplinary action against the plaintiff A for the most minor service order.

③ At the instant hosting room, Plaintiff A made a multiple times of sexual humiliations that could cause participants F to feel sexual humiliation and aversion, etc., and made a statement to the effect that he/she evaluated and criticizes the appearance of a specific person, such as K, or female students. Moreover, he/she respondeds to other dialogue participants or sexual humiliations, etc., and took part in it. Furthermore, such remarks were made repeatedly and continuously for more than three years. Although the degree of expression is not clear whether sexual harassment is sexual harassment is sexual harassment, some of the individual remarks were not expressed continuously for a long time, it cannot be said that the degree of the Plaintiff A’s misconduct is less light in that such remarks were made once for a long time, not once during a short period.

④ From among the participants in the instant holding bank, F, the only female student, was the victim of sexual harassment ordinarily committed at the instant holding bank, she saw a considerable sense of sexual humiliation, humiliation, and inorganic force. As a result, she obtained mental impulses and she had a mind that she was in the name of sick and wounded in the middle-school’s depression. As she caused the occurrence of suicide, she was unable to lead a school life, and she was under regular consultation at the counseling center, etc. without taking school therapy up until now. In other words, the degree of damage caused by the Plaintiff A’s misconduct is not somewhat weak.

⑤ After having become aware that the F reported the instant case, Plaintiff A reported F to the Gender Equality Center on the ground of sexual harassment in the instant hosting room, and demanded F to take prompt disciplinary action against F. The Disciplinary Committee emphasized that F had grounds for disciplinary action against F, rather than to vindicate himself/herself’s misconduct, and raised an issue as to the failure of the Defendant to proceed with F as soon as possible. However, it may be said that F was recognized that he/she did not have significant importance in light of the Plaintiff A’s misconduct, and that it was only a female student at the instant hosting room, who was the only female student at the instant holding room, to adapt to the male-centered atmosphere.

In light of the above attitude that the plaintiff A had shown before and after the instant disciplinary action, it is difficult to view that the plaintiff A had shown her repents sufficient, and the defendant also seems to reflect these circumstances in a disciplinary action. Such a measure of the defendant cannot be deemed unfair.

4. Conclusion

The plaintiff B's claim is justified, and the plaintiff A's claim is dismissed as it is without merit.

Judges Cho Young-hee

Judges Kim Gin-han

The defendant held a disciplinary review committee on October 11, 2017 and changed the previous disciplinary action.

Since the fact was notified to the plaintiff A on October 19, 2017, the plaintiff sought the invalidity confirmation of the disciplinary action on October 19, 2017.

shall be dismissed.

2) Students related to the instant case (hereinafter referred to as “A”) are marked in English initial as stated in the Defendant’s report of the instant case (Evidence No. 3).

According to the case report, the plaintiff A and the plaintiff B are the J respectively.

3) The grounds for the instant disciplinary action are on the same dialogue as the grounds for the disciplinary action against Plaintiff A.

A person shall be appointed.

A person shall be appointed.