Plaintiff (Attorney Nam-chul et al., Counsel for the plaintiff-appellant)

Women's Gender Discrimination Improvement Committee (Attorney Lee Jae-soo et al., Counsel for the defendant-appellant)

April 7, 2005

Seoul Administrative Court Decision 2003Guhap23387 decided Feb. 11, 2004

1. The defendant's appeal is dismissed.

2. The costs of appeal are assessed against the defendant.

1. Purport of claim

A disposition of sexual harassment rendered by the Defendant against the Plaintiff on May 6, 2003 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. The reasoning for the court’s explanation on the instant case is as follows, in addition to adding the following judgments as to the Plaintiff’s defense prior to the merits raised in the trial, and therefore, it is identical to the entry in the reasoning for the judgment of the court of first instance. Thus, this is cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of

Judgment on the previous defense of the merits

A. The defendant's assertion

The decision on gender discrimination and recommendation on corrective measures under the Act on the Prohibition of and Remedy for Gender Discrimination are the administrative guidance that recommends the other party to voluntarily correct the discrimination, and it does not cause any direct legal change in the legal status of the other party or other persons concerned, and thus, it does not constitute the administrative disposition subject to administrative litigation

B. Determination

(1) Relevant statutes

Article 7 (3) of the Act on Prohibition of and Remedies for Gender Discrimination (hereinafter “the Act”) provides that “sexual harassment shall be deemed to be gender discrimination” as stated in the attached statutes of the first instance trial. Article 28 (1) of the Act provides that “The defendant shall determine gender discrimination in the event that there are reasonable grounds to believe that it falls under gender discrimination as a result of the investigation under Article 22, and shall recommend necessary measures for correction,” provides the grounds for the defendant’s decision on sexual harassment and the recommendation of corrective measures, and Article 7 (2) of the same Act provides that “The corrective measures under paragraph (1) shall be suspended; 1.2. Restoration and compensation for damages; 3. Publication through daily newspapers; 5. Other matters prescribed by the Presidential Decree; and Article 28 (1) of the Act provides that “the defendant shall notify the defendant of the details of the recommendation or recommendation of the public institution or the employer of the amendment of the Act within 3.0 days after notification of the amendment of the Act’s recommendation or recommendation of the applicant for correction.”

(2) Whether the defendant's decision on gender discrimination is an administrative disposition

(A) Personal rights are recognized as derived from human dignity and value, which is the fundamental right guaranteed by Article 10 of the Constitution, and their contents are passively that the general public has the right not to infringe on social reputation or value, and the State actively bears the duty to guarantee the social reputation or value to the general public (Article 10 of the Constitution provides that “the State shall have the obligation to confirm and guarantee the fundamental human rights of an individual”). As in the instant case, if the Defendant unilaterally determines that a person selected as a sexual harassment constitutes sexual harassment even though the Defendant made a decision different from the Defendant on whether his speech or behavior constitutes sexual harassment, if the Defendant unilaterally makes a decision on whether his/her behavior or behavior constitutes sexual harassment, it would be likely that his/her personal right guaranteed by the Constitution as above is directly infringed. In this sense, the decision of the Defendant’s decision that the Plaintiff’s speech or behavior constitutes sexual harassment constitutes administrative disposition, as it is likely to directly infringe on the Plaintiff’s personal rights.

In addition, Article 27(1) of the Constitution provides that "All citizens shall have the right to a trial, , and judgment," thereby declaring the right to a trial as a fundamental right of citizens, and the contents of the right to a trial include the right to a claim for administrative litigation in cases where the rights of citizens are infringed by public authority. However, it is reasonable to guarantee the right to a trial that is guaranteed as a fundamental right by providing the defendant with an opportunity to file an administrative litigation against the defendant who is directly infringed upon his/her personality right due to the decision of sexual harassment by the defendant and to file an administrative

On the other hand, Article 30 of the Act at the time of the decision of sexual harassment of this case only stipulates the other party to the notification of the decision of sexual harassment of the defendant as "applicant and the head of the relevant public institution or the employer", but considering that the party whose personality right was directly infringed upon by the decision of sexual harassment of the defendant is a person who has been designated as a sexual harassment offender, it is reasonable to interpret it to the effect that it is improper to do so in lieu of notification to the head of the relevant public institution or the employer, and Article 30 (1) of the Act is amended to the other party to the decision of sexual harassment of the defendant as "applicant and respondent"

(B) In addition, according to Article 28(1) of the Act, when the defendant decides that he/she is a female discrimination, the defendant shall recommend the head of the public institution or the user of the public institution in question to take measures necessary for correction (the sexual harassment shall be considered to be classified by gender pursuant to Article 7(3) of the Act), and the decision of sexual harassment as a sexual harassment and the recommendation of corrective measures accordingly shall be in an indivisible relationship. However, the recommendation of corrective measures following the decision of sexual harassment has administrative disposition in the following respect, so the decision of sexual harassment in an indivisible relationship with the recommendation of corrective measures

In other words, the defendant's recommendation for corrective measures against the head of a public institution or the employer can be shown as a kind of administrative guidance that does not cause a direct legal change in the other party's legal status (Article 28 (1) of the Act), but in spite of such a form, the law grants the legal obligation to implement the recommendation and the legal obligation to notify the defendant of the content of the result (Article 31 (1) of the Act) unless the head of the public institution or the user of the public institution clearly expresses special reasons (Article 31 (2) of the Act), so the defendant's recommendation for corrective measures is an administrative disposition that imposes the other party's legal obligation in substance.

However, in a case where the head of the public agency or the user of the public agency did not implement the defendant's recommendation of corrective measures, the defendant can indirectly enforce the defendant's corrective measures recommendation and the result thereof through a public announcement to the general public (Article 33 of the Act) and can not take the administrative punishment or the method of administrative compulsory execution or immediate compulsory execution, etc., so it is insufficient to secure its effectiveness. However, the elements of securing the effectiveness of administration cannot be considered as an essential sign that determines the nature of administrative disposition, and the above indirect compulsory enforcement means can be said to have been established. Thus, the defendant's recommendation of corrective measures cannot deny the administrative disposition on the above aspect.

Ultimately, since the defendant's decision on sexual harassment constitutes an administrative disposition that directly changes the legal status of the citizen, the defendant's prior defense on the merits that the decision on sexual harassment is not an administrative disposition subject to administrative litigation is without merit.

2. If so, the judgment of the first instance is legitimate, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Jong-soo (Presiding Judge)