[2] The case where an employee can be held liable for an employer's act of sexual misconduct or sexual intercourse with another employee

[2] Where an employee committed an intentional indecent act, such as sexual indecent act or sexual intercourse, etc. against another employee, even if the act was not the employee’s performance of duties, the employer’s liability may be established not only in cases where the harmful act is objectively accompanied by or closely related to the performance of duties, such as sexual indecent act, etc. committed by the victim in the course of having the victim feel sexual humiliation or aversion, but also in cases where the harmful act is objectively related to the employer’s performance of duties, such as sexual indecent act, etc., by taking advantage of the fact that the employee has been authorized by the employer to determine employment conditions for other workers such as employment, continuous employment, promotion, performance evaluation, etc., such as sexual indecent act, etc., of the employee, but also in cases where it is objectively related to the employer’

1. Based on the evidence adopted, the lower court determined that Defendant 1’s act, as the president of the child welfare facility operated by Defendant 2, had the authority to employ or dismiss the employees belonging to the ○○○○○○○○○○, who was employed on August 1, 2005, during the second year of the Plaintiff’s school, and worked as the ○○○○○○○○○○ program teacher on the ground that the Plaintiff was passive and resistant nature of the Plaintiff’s passive and resistant nature, and that the Plaintiff was unable to properly perform his duties, and that the Plaintiff’s act of refusing to follow the direction by taking advantage of his position as the president of Defendant 1 or as the influence over the social welfare field, could be dismissed from ○○○○○○○○○○○○○○○○’s position, and that the Plaintiff’s act of refusing to follow the direction by taking advantage of his sexual intercourse with the Plaintiff’s position of the Plaintiff’s employee, and that the Plaintiff’s act of refusing to engage in an indecent act, including that of the Plaintiff’s employee.

In light of the records and relevant legal principles, the fact-finding and judgment of the court below are just, and there is no violation of the rules of evidence or misapprehension of legal principles as to sexual assault and sexual intercourse by force, as alleged in the grounds of appeal.

2. The phrase “office performance”, which is an element for an employer’s liability under Article 756 of the Civil Act, means that an employee’s unlawful act is objectively deemed to be an employer’s business activity, office performance, or performance without considering the actor’s subjective circumstances. In a case where an employee intentionally committed an harmful act against another person based on his/her intent, the employee’s act is not in itself one’s own business performance, but rather, is in close vicinity to the employer’s business time and place, and where the employee’s motive for performing all or part of the employee’s work is related to his/her work performance, it shall be deemed that the employer’s liability is established in view of the external and objective act related to the employer’s performance. In this case, whether the employer has caused danger and lack of preventive measures may be additionally considered for the fair burden of damages (see Supreme Court Decisions 9Da47297, Feb. 11, 200; 200Da5186, Feb. 9, 2001).

According to the facts acknowledged by the court below, Defendant 1, as the president of ○○○○○, was authorized to employ or dismiss the employees belonging to ○○○○○○○, and therefore, Defendant 1 had the status to put them at a disadvantage in terms of working conditions, etc., if the employees refuse or resist his sexual harmful act. Meanwhile, Defendant 1 forced the Plaintiff to talk that the active nature of the work should be required for the Plaintiff immediately after the completion of his awareness with his employees, and forced the Plaintiff to sexual intercourse with his sexual organ, and sexual indecent act or sexual intercourse by taking advantage of the superior position of the Plaintiff in several times after commencement of the sexual indecent act. As such, Defendant 1’s sexual indecent act and sexual intercourse, etc. are objectively related to the execution of the work of Defendant 2.

In the same purport, the lower court’s determination that recognized Defendant 2’s employer’s liability as to Defendant 1’s sexual harassment and sexual intercourse with the Plaintiff is justifiable and acceptable. In so doing, it did not err by misapprehending the legal doctrine on employer’s liability, as otherwise alleged in the

3. Therefore, the appeal shall be dismissed, and all costs of appeal shall be borne by the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)