Whether a recommendation for corrective measures under the former Act on Prohibition of and Remedies for Gender Discrimination by the Gender Discrimination Improvement Committee constitutes an administrative disposition subject to administrative litigation (affirmative)

According to the former Act on Prohibition of and Remedies for Gender Discrimination against the Head of a Public Agency or the employer (amended by Act No. 6915 of May 29, 2003), a recommendation for corrective measures may be shown as a kind of administrative guidance that does not cause a direct legal change in the legal status of the other party (Article 28(1) of the same Act). However, notwithstanding the same form, the same Act imposes at the same time legal obligation to notify the Commission of the result of corrective measures (Article 31(1) of the same Act), insofar as the head of the relevant public agency or the employer does not explain special reasons to the head of the relevant public agency or the employer (Article 31(2) of the same Act). Thus, the recommendation for corrective measures by the said commission is subject to administrative litigation that imposes a legal obligation on the other party in substance.

Articles 2 subparag. 2, 9, 28(1), 30, and 31 of the former Act on Prohibition of and Remedies for Gender Discrimination (Amended by Act No. 6915, May 29, 2003); Article 2 of the Administrative Litigation Act

Plaintiff 1 and one other (Attorney Lee Young-young, Counsel for the plaintiff-appellant)

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

July 8, 2003

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The defendant's words and actions against the plaintiff 1 on June 24, 2002, "the plaintiff 1's words and actions constitute sexual harassment." The decision and the plaintiff 2 against the plaintiff 2's company " shall compensate the victim for the mental and material damage suffered by the victim, and shall recommend the establishment and implementation of measures to prevent the recurrence of sexual harassment in the future." Each corrective measure recommendation is revoked (the purport of the complaint of this case is stated on the premise that the defendant made the above decision and recommendation of corrective measures against all the plaintiffs, but it is shown that the defendant's resolution [1] order is not clear and wrong).

1. Details of the disposition;

A. The plaintiff 2 company (hereinafter referred to as the "Plaintiff company") is a company that runs the periodical publishing business, advertising business, consulting business, etc. The plaintiff 1 is a representative director of the plaintiff company and is married. The plaintiff 1 is an unmarried person who was employed as an intern on January 21, 2002 by joining the plaintiff company and worked as an intern on March 29, 2002.

B. However, on April 1, 2002, the victim asserted that he was sexual harassment from the plaintiff 1 and the plaintiff company as the respondent, while making individual interview with the plaintiff 1, and applied for correction pursuant to the former Act on the Prohibition of and Remedy for Gender Discrimination (amended by Act No. 6915 of May 29, 2003; hereinafter referred to as the "Act on the Prohibition of Gender Discrimination"). Accordingly, on the ground that the plaintiff 1 applied for correction of sexual harassment under Article 28 (1) of the Act on the Prohibition of Gender Discrimination on the ground that he was sexual harassment with the plaintiff 1 on June 24, 2002 by stating that he was sexual harassment with the plaintiff 1 (the "sexual harassment was sexual harassment against the victim" (the "the decision of this case"), the defendant did not take corrective measures to prevent the plaintiff 1 from taking the victim's hand during the individual interview with the victim, and that the plaintiff 1 did not take corrective measures to prevent the recurrence of sexual harassment against the plaintiff 1's sexual harassment.

[Evidence] Gap 1, Eul 1, 6, the purport of the whole argument

2. Determination on this safety defense

A. The defendant's assertion

The decision of this case and the recommendation of corrective measures are unlawful since they are the administrative guidance that recommends the other party to voluntarily correct so that they do not cause a direct legal change in the legal status of the other party and other interested persons, and they do not constitute an administrative disposition that is the object of administrative litigation.

B. Determination

(1) Relevant statutes

Article 7 (3) of the Gender Discrimination Prohibition Act provides that "sexual harassment shall be deemed to be gender discrimination". Article 28 (1) of the same Act provides that "where there exist reasonable grounds to believe that it falls under gender discrimination as a result of an investigation conducted under Article 22, the defendant shall determine that it is gender discrimination, and shall recommend the head of the relevant public institution or the employer to take measures necessary for correction." Article 7 (2) provides the grounds for the defendant's decision of sexual harassment and the recommendation of corrective measures. Paragraph (1) of the same Article provides that "the corrective measures under the provisions of paragraph (1) shall be as follows: 1.2.

(2) The administrative disposition of the instant decision

Personal rights are rights derived from human dignity and value guaranteed by Article 10 of the Constitution, which are fundamental rights derived from human dignity and value guaranteed by Article 10, and the contents are passively that any general citizen 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. If, as in this case, even though the defendant made a decision different from the defendant as to whether a sexual harassment constitutes sexual harassment, if the defendant unilaterally makes a decision that his or her speech or behavior constitutes sexual harassment, it would be likely that his or her personal right guaranteed by the Constitution may be directly infringed upon by such decision. In this sense, the decision of the defendant who decided that Plaintiff 1’s speech or behavior constitutes sexual harassment against the victim constitutes administrative disposition, as it is likely to directly infringe on Plaintiff 1’s personal right.

In addition, Article 27(1) of the Constitution provides that "All citizens shall have the right to a trial in c. by providing that "the right to a trial shall be held in c. by all citizens," and declares the right to a trial as a fundamental right, and the contents of the right to a trial include the right to a lawsuit in the case of infringement of the people's rights by public authority. However, it is reasonable to guarantee the right to a trial guaranteed as such by the above fundamental right by providing the citizens whose personal rights are directly infringed due to the defendant's decision of sexual harassment with

However, Article 30 of the Act on the Prohibition of Gender Discrimination only stipulates that the other party to the notification of the defendant's sexual harassment shall be the applicant and the head of the relevant public institution or the employer. However, considering that the party whose personal right is directly infringed upon by the defendant's sexual harassment decision is a person who has been designated as a sexual harassment offender, it is reasonable to interpret it to the purport that it will substitute the notification with the notification to the head of the relevant public institution or the employer. From this point of view, Article 30 (1) of the Act on the Prohibition of Gender Discrimination stipulates the other party to the decision of sexual harassment as the applicant

(3) The administrative disposition of the instant recommendation for corrective measures

The defendant's recommendation for corrective measures against the head of a public agency or the employer can be shown as a kind of administrative guidance that does not directly cause any legal change in the legal status of the other party (Article 28 (1) of the Gender Discrimination Act). However, notwithstanding such a form, the Gender Discrimination Act grants the legal obligation to implement the recommendation and the legal obligation to notify the defendant of the result of the execution (Article 31 (1) of the same Act) unless the head of the public agency or the user has clearly explained special reasons (Article 31 (2) of the same Act). Thus, the defendant's recommendation for corrective measures is an administrative disposition that imposes legal obligation on the other party 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 corrective measures, the defendant can indirectly enforce the defendant's corrective measures recommendation and its result through a public announcement to the general public (Article 33 of the same Act), and it can be said that it is insufficient to secure its effectiveness in that it can not take the means of administrative punishment, or of administrative compulsory execution or immediate compulsory execution, etc. However, the elements of securing the effectiveness of administration cannot be considered as an essential sign that determines the nature of administrative disposition, and it can be said that the above indirect compulsory enforcement means have been established. Accordingly, the defendant's corrective measures recommendation cannot be denied on the ground of the above aspect.

Therefore, the defendant's recommendation for corrective measures of this case, which recommended the plaintiff company to establish and implement measures to prevent the recurrence of mental and material damage and sexual harassment that the victim received, is taking the form of recommendation, but it constitutes an administrative disposition that causes changes in the legal status by imposing legal obligations on the plaintiff company.

(4) Sub-determination

Ultimately, the decision of this case and the recommendation of corrective measures (hereinafter referred to as the "decision of this case and recommendation of corrective measures") are administrative dispositions that cause a direct change in the rights and duties of the people. Thus, the defendant's assertion that the disposition of this case is not an administrative disposition subject to administrative litigation is without merit.

3. Whether the instant disposition is lawful

A. The plaintiffs' assertion

(1) The victim actively designated a meal place according to the victim's own will after the plaintiff 1 offered a personal interview. After completing the meal at the place, the plaintiff 1 and the victim demanded that the plaintiff 1 go away from his own will. After that, the plaintiff 1 and the victim 1 et al. al. al. am naturally and naturally kn't kn't kn't kn't kn't kn't kn't kn't kn't kn't kn't express any intention of refusal against the plaintiff 1's act. Thus, in light of the above circumstances, it is difficult to see that the plaintiff 1 caused the victim to feel sexual humiliation or a sense of aversion due to the victim's act of kn't kn't kn't kn't kn't n't k't n't n't n't n't n't n't k.

(2) In a case where an objection is filed against the Defendant’s decision on sexual harassment and the Defendant’s recommendation for corrective measures, the decision is made through the plenary session, but the Defendant did not attend the meeting and made a decision that dismissed the Plaintiffs’ objection against the instant disposition. Therefore, the instant disposition should be revoked as unlawful due to the defect in the procedure of such decision.

B. Determination as to the assertion of the above A-A-1

(1) Relevant statutes

Article 2 subparag. 2 of the Gender Discrimination Act defines the concept of sexual harassment by stipulating that "an employee, employer or worker of a public agency in a job, employment and other relations causes sexual humiliation or repacter to feel sexual humiliation or aversion due to sexual words or actions utilizing his position or in relation with his duties, etc., or gives disadvantages in employment on the ground of failing to comply with any demands, etc." In addition, Article 2 subparag. 4 of the same Act defines the concept of sexual harassment by stipulating that "an employer means an employer who acts on behalf of the employer or a person in charge of business management or other matters concerning workers", and Article 7(1) of the same Act defines the scope of a sexual harassment offender by stipulating that "an employee, employer or worker of a public agency shall not engage in sexual harassment."

(1) Facts of recognition

(A) As part of the method of negotiating issues such as the determination of annual salary system with the employees of the Plaintiff Company, Plaintiff 1 had conducted an individual interview with the Plaintiff Company since its work hours. As such, there are many cases where Plaintiff 1 had been extended to the drinking place, not only on a full-time and full-time basis, but also on an individual interview with the Plaintiff Company.

(B) On the other hand, although the plaintiff 1 did not implement the above individual interview until becoming a full-time employee, the plaintiff 1 notified the victim of the implementation of the above individual interview around March 28, 2002 with the aim of ascertaining the atmosphere of the plaintiff company and checking the victim's work with the aim of ascertaining the situation of the plaintiff company and checking the victim's work.

(C) Accordingly, at around 19:30 on March 28, 2002, the plaintiff 1 and the victim 1 were drank with the victim's proposal, and they were drank with the victim's house located in the joint Dong in Seoul. At the same place, the plaintiff 1 and the victim 1 got drinking by dividing the two soldiers' house while drinking again. At around 2:00 on the same day, the plaintiff 1 got out of the above multiplied house and provided the plaintiff 1's house with the plaintiff 1's proposal to move the place. At the victim's option, the two children were drank with the other two children's house, but at the so-called house, the plaintiff 1 got drinking with the other two children's house, but at the so-called house, the plaintiff 1 was drank with the other children's opinion that the plaintiff 1 had the same opinion as the plaintiff 1 with the plaintiff 1's answer.

(D) Due to such drinking, Plaintiff 1 and the victim were not in the state of exploitation at the time of 00:15 on March 29, 2002, but there was a significant progress. However, Plaintiff 1 had proposed to move the victim again, and the victim had moved to the head of the family where he was in the neighborhood without Plaintiff 1’s proposal. However, in the process of such movement, Plaintiff 1 got the victim’s grandchildren, and the victim had the victim moved to the head of the family where he was in the neighborhood. However, in the process of this movement, Plaintiff 1 had the victim’s grandchildren, and the victim caused the victim’s expression of the color, the victim’s hand up to the end of his hand, stating that “I might do so with the victim’s hands,” and the situation was repeated once.

(E) After that, at around 00:30 on March 29, 2002, the plaintiff 1 and the victim arrived at the heading house. The victim first fell at the cryp, and the plaintiff 1 took the cryp of the cryp of the cryp; the plaintiff 1 ordered the cryp of the victim to the cryp of the cryp of the cryp of the cryp; the plaintiff 2-3 cryp of the cryp of the cryp of the cryp of the cryp of the cryp of the cryp of the cryp of the cryp of the cryp of the cryp of the cryp of the cryp of the cryp of the cryp of the cryp of the cryp of the cryp of the cryp of the cryp of the cryp of the cryp.

[Evidence] Eul 2, 4, Eul 3, 6, 7, 8 (part of each), a witness's key name, a victim, a witness's chair (part of each evidence), and the plaintiff 1's personal examination (part of each evidence)

(3) Determination

According to the above facts, it is difficult to see that the victim's personal interview with the victim 1 was continued by making his personal interview, clothes, and franchising ( even if a franchisium was divided with a franchising, it was done for personal interview with the plaintiff company, and it is difficult to see that the nature of franchising has been purely converted from a personal interview with the plaintiff company, in light of the above franchising process, it is difficult to franchising the victim's personal interview with the defendant's representative director, and that the victim's personal speech or behavior was not allowed to have a franchising of sexual harassment with the defendant's personal interview with the defendant's franchising behavior or behavior, and thus, it is hard to see that the victim's personal speech or behavior was not allowed to have a franchising relation with the plaintiff's above 1's personal speech or behavior, and thus, it is hard to see that the defendant's above 1's personal speech or behavior was not allowed.

C. Determination as to the assertion of the above A-2

(1) Relevant statutes

Article 32 of the Gender Discrimination Act provides that "A person who is dissatisfied with the defendant's recommendation to take corrective measures pursuant to this Act may file an objection with the defendant within 30 days from the date of receipt of the notice of the measure" (Article 32 of the same Act provides that a person who is dissatisfied with the defendant's decision to take a sexual harassment cannot file the objection, but it appears in a clear legislative defect, and in that purport, Article 32 of the Act on the Prohibition of Gender Discrimination is revised that a person who is dissatisfied with the defendant's decision to take corrective measures can file the objection. Thus, the person who is dissatisfied with the defendant's decision to take corrective measures can file the objection." Article 11 (1) of the same Act provides that "a meeting of the defendant shall be divided into a meeting consisting of all members (hereinafter referred to as "plenary session"), a chairperson or a standing member and a non-standing member (hereinafter referred to as "plenary session"), and Article 12 (5) of the same Act provides that "a majority of the plenary session's meetings shall deliberate and resolution" in the following order:

(2) Determination

According to the overall purport of Gap 2, Eul 7, and 8's statements and arguments, the plaintiffs filed an objection against the disposition of this case with the defendant on August 2, 2002. The defendant can recognize the fact that all members other than the Yellownam member attended a plenary session on September 2, 2002 and decided that the above objection is dismissed. However, in addition to the provisions of Articles 11 (1) and 13 (1) of the Gender Discrimination Prevention Act, if all members of the plenary session are combined, it shall not be construed that all members are members of the plenary session, and even if the decision made without the attendance of all members of the household affairs is illegal, the disposition of this case, the original disposition of this case is unlawful merely due to the defect in the adjudication on such objection, and the plaintiffs' above assertion is not justified.

4. Conclusion

Therefore, the plaintiffs' claims seeking revocation on the premise that the disposition of this case is unlawful are dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Chang-suk (Presiding Judge)