[2] Requirements for establishment of sexual harassment

[3] The person who bears the burden of proving the grounds for disciplinary action in the administrative litigation disputing the legitimacy of the disciplinary action taken on the grounds of sexual harassment (=the defendant) and the degree of proof / Whether the existence of the grounds for disciplinary action can be denied in the administrative litigation solely on the ground that the defendant was acquitted in the criminal trial related to sexual harassment

[4] The court’s belief in conducting a trial related to sexual harassment and determining the probative value of the victim’s statement of sexual harassment

[2] Although sexual harassment does not necessarily require a sexual motive or intent to be established, in light of specific circumstances, such as the relationship between the parties, place and situation where the act was committed, the details or degree of 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 for a short period or continued to exist, it should be objectively recognized that the other party to the act has caused sexual humiliation or aversion to the general and average person in the same position as the other party, and thereby, the other party to the act has suffered sexual humiliation or aversion.

[3] In an administrative litigation disputing the legitimacy of a disciplinary action conducted on the grounds of sexual harassment, the burden of proof of the grounds for disciplinary action lies on the defendant who asserts the legitimacy of the relevant disposition. However, it is sufficient to prove highly probable that there was a fact when comprehensively examining all evidence in light of the empirical rule, barring special circumstances. Civil liability and criminal liability are subject to different principles in terms of guiding ideology, burden of proof, degree of proof, etc., and thus, it is difficult to hold the defendant not guilty of the facts charged on the grounds that there was sexual harassment in a criminal trial related to sexual harassment, which is a cause for disciplinary action, and thus, the existence of the grounds for disciplinary action in an administrative litigation is not denied.

[4] When a court examines a lawsuit related to sexual harassment, it shall not lose gender equality so as to understand the issue of sexual discrimination in the context of the relevant case and realize gender equality (see Article 5(1) of the Framework Act on Gender Equality). As such, our society’s awareness, perception, structure, etc. that the victim may suffer from negative reaction, public opinion, disadvantageous treatment, or mental harm caused thereby, in the process of taking the issue of sexual harassment into account by having the offender-centered culture, perception, structure, etc. It should be noted that the victim may suffer from the so-called “second damage” which is exposed to negative reaction, public opinion, disadvantageous treatment, or mental harm caused thereby. The victim may continue to maintain the previous relationship even after the victim was damaged by anxiety or fear of the second damage, and only make a report after the victim was not immediately reported, and even if the victim or the court appears to have a passive attitude in making a statement after reporting the fact of sexual harassment. Such rejection of the probative value of the victim’s statement without sufficiently considering the special circumstances faced by the victim of sexual harassment can be deemed to be based on logical and empirical rules.

1. Case history

A. The Plaintiff is a professor of the computer department of ○○ University established and operated by ○○ Private Teaching Institutes, and Nonparty 1 and Nonparty 2 are students of the victim’s department.

B. On April 10, 2015, the Defendant joining the Defendant dismissed the Plaintiff on the grounds that the Plaintiff committed sexual harassment and sexual harassment on several occasions against female students with the relevant department including the following acts, which constitutes grounds for disciplinary action under each subparagraph of Article 61(1) of the Private School Act.

(1) Disciplinary reasons related to Nonparty 1

① When Nonparty 1 visited the Plaintiff’s laboratory together with a flusium to obtain a letter of recommendation for volunteer activities, Nonparty 1 said that Nonparty 1 would make a letter of recommendation (Disciplinary Reason No. 1-2).

② During class, Nonparty 1 had an inquiry, who seems to have been aware of Nonparty 1 after the class (Disciplinary Reason No. 1-3).

③ If Nonparty 1 finds the Plaintiff’s laboratory, Nonparty 1 made an ambiguous speech, such as “masta-gu and dyspatha-patha-patha-patha,” “matha-patha-pathatha-patha-patha-patha-patha-pathath,” and “abre-patha-patha-patha” (Disciplinary Reason No. 1

(2) Disciplinary reasons related to Nonparty 2

① During class hours, Nonparty 2 was able to guide Nonparty 2 at the rear, and, if unnecessary, he saw Nonparty 2 to sit and have a lot of physical contacts (Disciplinary Reason No. 3-1).

② In the face of Nonparty 2 in the corridor, the act of slicking her face with his/her finger, shouldering, and her kickt with his/her finger (Disciplinary Reason No. 3-2) was committed (Disciplinary Reason No. 3-2)

③ When there are two or more parts with Nonparty 2, they did not sell them (Disciplinary Reason No. 3-3).

④ Nonparty 2, who was skid in the department MT, kiscked on two occasions, and kiscked on two occasions (Disciplinary Reason No. 3-4).

⑤ Nonparty 2 requested Nonparty 2 to have kisck on his own view, and Nonparty 2 forced Nonparty 2 to have kisck on the Plaintiff’s view (Disciplinary Reason No. 3-5).

C. On May 7, 2015, the Plaintiff dissatisfied with disciplinary action, filed a petition review against the Defendant, and the Defendant filed the instant lawsuit seeking revocation of the decision to dismiss all the Plaintiff’s claims.

2. The judgment of the court below

A. As to the grounds of disciplinary action against Nonparty 1 related to the victim

(1) Of the grounds of disciplinary action No. 1-3, it is difficult to recognize the occurrence itself in light of the fact that the Plaintiff, a professor, attempted such acts in the practice room where many students take lessons, and that the Plaintiff made positive evaluation of the Plaintiff’s teaching method in the lecture conducted anonymously without mentioning it. However, the Plaintiff may be recognized as having made unnecessary physical contacts, such as taking the above victim’s hand or taking the part in his/her hands, but it is difficult to view that the Plaintiff’s active teaching method was derived from the Plaintiff’s active teaching method, and that the victim continued to take part in the Plaintiff’s practice, etc., it led to the degree of causing sexual humiliation or aversion from the perspective of an average person.

(2) The grounds for disciplinary action Nos. 1-2 and 1-4 may be acknowledged, and there is no improper aspect. However, considering the following, the Plaintiff’s act of maintaining a friendly relationship with the students of the department, including the victim at ordinary times, while maintaining a friendly relationship with the students of the department, including the victim at ordinary times, and frequently talking with them, or divided family talks and counseling with them, and it is inappropriate to take part of the conversation between the Plaintiff and the victim at issue without considering the overall context, it is difficult to deem that female students, who were victims, have suffered sexual humiliation or aversion from the standpoint of sexual students.

B. As to the disciplinary reasons related to Nonparty 2

In light of the following, it is difficult to recognize credibility of Non-Party 2’s statement on Disciplinary Reason No. 3-1 through 5, it is doubtful that the Plaintiff’s statement made a very good evaluation of the Plaintiff’s lectures for the following reasons. In light of the fact that, even according to the content of the statement, it is doubtful that the Plaintiff did not exaggeration the Plaintiff to take a attitude that the Plaintiff would have attempted to punish a large number of persons with his arms through the expression of frightness, and that Nonparty 2’s statement made kis on the Plaintiff cannot be deemed to have been forced by the Plaintiff because her frights were in the middle of the frighten of the female’s frightness.

First, the victim, upon the first request of the non-party 1, reported the case of his sexual harassment. After the criminal complaint, the victim refused to make a statement in the investigation agency or the court after the criminal complaint, but made a statement as to the fact of the damage to the non-party 1 as a witness, it is doubtful whether it can be seen as a response to the victim of sexual harassment or sexual harassment.

Second, it is doubtful as to whether the above victim had an intent to criticize or report the acts of the plaintiff before the 2013th anniversary of Non-party 1's request, because the above victim's preparation of his statement around December 17, 2014 was made from 2013 to the first half of 2014.

Third, the above victim seems to be avoiding the plaintiff after the dismissal disposition of this case was taken against the plaintiff before and after the plaintiff had never been taken. In order to defer this, it is doubtful that the above victim's refusal to make a statement in an investigative agency, etc. about the facts of his/her damage is difficult to assume responsibility due to his/her report.

Fourth, instead of preparing and providing a letter promising not to file a criminal complaint against the plaintiff, the victim demanded the plaintiff not to take legal action against the plaintiff and received the certificate from a notarial office in the name of the plaintiff, which is certified by the notarial office. This is an example to the fact that the victim is an ordinary act of simply signing an agreement to use the perpetrator.

C. Regarding disciplinary action

Even if all of the disciplinary reasons are recognized, the Plaintiff’s words and actions are active training in a narrow practice room by means of the so-called man-man-level lecture, and are conducted without any intention while dialogueing with the students without the attack, talking with them, and friendly. Female students do not feel any particular problem at the time and did not seriously accept it for 3 months long, it was reported due to Nonparty 1’s filing of the problem, and in light of the circumstances and degree of damages of the instant case, the instant dismissal disposition was unlawful, in light of the degree of the misconduct of the Plaintiff’s act, as it excessively deviates from and abused the scope of discretion.

3. Judgment of the Supreme Court

A. As to the criteria for determining sexual harassment and the burden of proof

(1) The term “sexual harassment” means an act of causing sexual humiliation or aversion to the other party by utilizing his/her position or by making sexual speech or behavior, sexual demand, etc. in relation to his/her duties, employment, and other relations, (1) an employee of a State agency, local government, school, public service-related organization, etc., (2) an act of causing disadvantage to the other party on the ground that the other party does not comply with his/her sexual speech or behavior, demand, etc. or expressing his/her intent to grant benefits 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 Equal Employment Opportunity and Work-Family Balance Assistance Act; and Article 2 subparag. 3(d) of the National Human Rights Commission of Korea Act). Here, “sexual speech or behavior” refers to physical relationship between men and women or physical characteristics of men or women, in light of the sound common sense and practice of the community.

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 Supreme Court Decision 2005Du6461, Jun. 14, 2007, etc.).

(2) In an administrative litigation disputing the legitimacy of a disciplinary action conducted on the grounds of sexual harassment, the Defendant bears the burden of proving the legality of the relevant disciplinary action. However, in a civil or administrative litigation, the burden of proving facts is not natural scientific proof that the proof of facts ought to be without doubt, and barring special circumstances, it is sufficient to prove highly probable that there was a fact when comprehensively examining all evidence in light of the empirical rule (see, e.g., Supreme Court Decision 2008Da6755, Oct. 28, 2010). Since civil liability and criminal liability are different principles from each other in terms of guidance ideology, burden of proof, degree of proof, etc., the fact that there was sexual harassment in a criminal trial related to sexual harassment, which is a cause for disciplinary action, is difficult to be determined beyond a reasonable doubt, such circumstance alone does not deny the existence of a cause for disciplinary action in an administrative litigation (see, e.g., Supreme Court Decision 2012Da17529, Mar. 12, 2015).

In examining litigation related to sexual harassment, the court should not lose gender equality (see Article 5(1) of the Framework Act on Gender Equality) so as to understand the issue of sexual discrimination in the context in which the relevant case occurred and realize gender equality (see Article 5(1)). Accordingly, in our society’s awareness, perception, structure, etc. that the victim may suffer from negative reaction, public opinion, disadvantageous treatment, or mental harm, etc. in the course of considering the victim’s awareness of the fact of sexual harassment, rather than being exposed to the victim’s sexual harassment. The victim may continue to maintain the previous relationship even after the victim was damaged due to anxiety or fear of fear of the secondary damage, and only file a report after the victim was not immediately reported, and even if the victim was aware of the fact of sexual harassment and recommended the victim to make a statement. The rejection of the probative value of the victim’s statement without sufficiently considering the special circumstances faced by the victim of sexual harassment cannot be deemed as evidence judgment based on logical and empirical rules based on justice and equity rules.

B. As to the existence of grounds for disciplinary action

(1) In light of the above legal principles, the part of the lower court determined that the occurrence of sexual harassment itself cannot be recognized, which is grounds for disciplinary action No. 1-3 and No. 3-1,

First of all, the lower court determined that it was difficult for the Plaintiff to be aware of the so-called “lebane” in the practice room in relation to the disciplinary reasons set forth in Article 1-3. The lower court rejected the probative value of the victim’s statement on the grounds that the Plaintiff acknowledged the Plaintiff’s unnecessary physical contact with Nonparty 1 during class. However, the lower court rejected the part other than the above act on the ground that the Plaintiff actively assessed the Plaintiff’s educational method in the lecture that the said victim took place anonymously or continuously took part in the Plaintiff’s class without mentioning it in the lecture that the said victim took place. However, in light of the aforementioned legal doctrine, it is difficult to view it as the conclusion that the court assessed the probative value by comparing and comparing the

Next, it is difficult to accept the grounds for rejecting Nonparty 2’s statement regarding disciplinary reasons for disciplinary reasons Nos. 3-1 through 5 also. As already examined, the circumstance that the victim was passive in his statement of damage to sexual harassment or brought an issue after a certain period of time has elapsed since the occurrence of sexual harassment is not a ground for rejecting the victim’s statement somewhat. In particular, it is doubtful that the lower court’s determination that it is doubtful whether the victim would have attempted to criticize or report the Plaintiff’s act before the victim’s participation without Nonparty 1’s recommendation or request is inappropriate as the grounds for rejecting the occurrence of sexual harassment itself.

(2) We examine the lower judgment regarding grounds for disciplinary action under Articles 1-2, 1-3, and 1-4.

The lower court’s determination that it is inappropriate for the Plaintiff to take part of the conversation between the Plaintiff and the victim without considering the overall context is reasonable. However, the lower court’s determination that even if the Plaintiff had had an unnecessary physical contact with the victim with respect to the grounds for disciplinary reasons No. 1-3 on the ground that: (a) the Plaintiff maintained a friendly relationship with ordinary students and frequently took part in a friendly relationship with them; and (b) it was recognized that the Plaintiff had an unnecessary physical contact with the victim; (c) the Plaintiff was derived from the Plaintiff’s active teaching method; and (d) the Plaintiff continued to take part in the Plaintiff’s training course even after the fact of sexual harassment; and (e) it is difficult to view that the Plaintiff’s act led to the degree of causing sexual humiliation or aversion from the ordinary and average person’s perspective on the ground that the Plaintiff did not cause sexual harassment. This reasoning is inappropriate because the court did not err by misapprehending the Plaintiff’s assessment based on a perpetrator’s central accident and perception during the period of the sexual harassment victims.

The issue of whether the Plaintiff’s act constitutes sexual harassment is correct in light of the following: (a) the perpetrator is a professor and the victim is a student; (b) sexual harassment occurred in the practice room or the professor’s laboratory, etc.; (c) sexual speech and behavior was made by taking advantage of the student’s recommendation letter, etc. as important professors’ employment; and (d) the circumstances where such act was continuously made not only once but also continuous, it was reasonable to have deliberated and determined on the basis of whether the perpetrator caused sexual humiliation or aversion from the standpoint of the average person in the same position as the victims rather than the general and average person of our society.

C. Sub-decision

Nevertheless, the lower court determined that the instant disciplinary cause was not recognized on the ground that the victim’s statement was rejected or the Plaintiff’s speech and behavior did not constitute sexual harassment. In so doing, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the elements of establishment and burden of proof of sexual harassment, thereby adversely affecting the

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices

Justices Ko Young-han (Presiding Justice)