In a case where Party A, who served as a major executive officer of the Army, was subject to a disciplinary disposition for a three-day probation on the ground that he/she committed an act detrimental to his/her dignity, such as taking the son’s attitude against Party B in the same military unit, the case holding that there was no illegality of deviation or abuse of discretion in disciplinary action

In a case where Party A, who worked as a main officer of the Army, took the attitude of having knife Party B’s grandchildren on the same military unit, and was subject to a disciplinary action for the last three days pursuant to Article 56 of the Military Personnel Management Act on the ground that he/she committed an act impairing his/her dignity by violating sexual military discipline, such as “in the case of a married male-gu, she is not good,” the case holding that Party B’s behavior and speaking constitute a “sexual sexual harassment,” which would cause sexual humiliation or aversion to the other party objectively, and that Party B’s act and speaking constitute an unlawful act repeatedly taking into account that Party A’s act and speaking were not in a situation where Party A did not particularly listen to drinking water into consideration, and that Party A’s act and speaking constitute a violation of social norms, and thus, Party B’s act and speaking repeatedly did not constitute an abuse of discretion, without objectively taking into account the degree of action and discretion of Party A.

Article 56 subparag. 2 of the Military Personnel Management Act, Article 2 subparag. 2 of the Equal Employment Opportunity and Work-Family Balance Assistance Act

Plaintiff (Law Firm Barun, Attorneys Lee Lee Dong-soo, Counsel for plaintiff-appellant)

Head of the Army Second Military Corps;

October 23, 2015

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant's disciplinary action against the plaintiff on December 22, 2014 shall be revoked.

1. Details of the disposition;

A. On January 30, 1985, the Plaintiff entered the Army and was appointed as Staff sergeant on May 1, 1987. From May 30, 2012 to May 30, 2012, the Plaintiff is a person who served as a master staff at the ○○○ Information and Communications Group of the Army at the second group of the Army from May 30, 2012 to the date of closing argument.

B. On December 22, 2014, the Defendant: (a) against the Plaintiff, on September 22, 2014, “Around September 2014, the Plaintiff was serving as the principal executive officer of the Second Army ○○○○ Information and Communications Team in the Army; (b) filed a complaint with the victim Nonparty 1 (hereinafter “victim”); and (c) around September 30, 2014, the Plaintiff filed an appeal with the Plaintiff on the ground that the said victim “Isle If Isle, Isle, Isle? If Isle, Isle? If Isle, Isle?? Isle? If Isle, Isle? Isle? If Isle, Isle? Isle? Is off Isle? Is off Isle? Is off Isle? Isle? Is off the appeal; and (d) on the ground that the Plaintiff violated the duty to maintain dignity by violating sexual discipline against the victim” (hereinafter “instant disposition”).

[Reasons for Recognition] Each entry in Gap evidence Nos. 1, 2, and 3, the absence of dispute, the purport of the whole pleadings

2. The plaintiff's assertion

The Plaintiff’s act of taking the victim’s wife was humbling, and the act of talking with the victim was merely asking the victim’s opinion on the ancillary accommodation facilities, and thus, does not have any speech and behavior that could cause a sense of sexual shame to the victim. Therefore, the instant disposition was unlawful since it did not constitute grounds for disciplinary action, even though it did not constitute grounds for disciplinary action.

3. Determination

A. Facts of recognition

1) From June 3, 2013 to November 2, 2014, the Plaintiff (date of birth omitted) and the officer of May 1, 1987 served as the main officer belonging to the △△△△○○○ Information and Communications Team in the Army from June 3, 2013 to November 2, 2014. From November 3, 2014, the Plaintiff is serving as the main officer belonging to the △△○○○○○○○○○○○ Information and Communications Team in the Army and Communications Group in the Army Group 2 Group 2 Group 2 Group 2 group 2 group 2 group 2 group 2 group 2 group 2 group 3 group 3 group 3 group 3 group 201, and is serving as the assistant officer for education and training. The victim

2) On September 2014, the Plaintiff, along with soldiers in the front corridor of the multi-purpose room located on the first floor of the △△△△△△ Group, committed an act to knife the victim, who is a first-class commander, who was the victim. The victim said, “I am to see the soldier?” and “I am to am to am to am to am to am to am to the degree of bad behavior?”

3) On September 2014, the Plaintiff stated that “In the △△△△ Party’s senior restaurant, at the end of the end of the day of opening the large unit, the Plaintiff told the victim that “in the case of a king, she would have a leuk-gu to marriage, she would not have a knife knife?” at the △△ Party’s senior restaurant.

4) The victim, who is a personnel officer of the same Information and Communications Team and is working as a female senior counselor, told the non-party 2 Captain who was working for the same information and communications team, the plaintiff's above speech and behavior at the seat of the plaintiff, and the non-party 2 Captain transferred the above fact to the large registry, and

5) In the course of the investigation into the instant disciplinary cause, the Plaintiff saw that, even prior to the investigation, the Plaintiff, while making the victim show the paper floor of the instant disciplinary cause, caused inconvenience to the Plaintiff to deem himself/herself as a woman who is his/her commercial person by doing his/her conduct. As seen earlier, the Plaintiff prepared a written statement to the effect that, as seen earlier, the Plaintiff, as seen earlier, he/she gets sexual humiliation at the time when she had sexual intercoursed with the victim by doing so by doing so on a public place around September 2014, 2014.

6) The victim expressed his/her intent not to punish the Plaintiff.

B. Determination

1) Relevant laws and regulations

Article 56 of the Military Personnel Management Act provides that “Where a soldier violates an order issued under the Military Personnel Management Act or the Military Personnel Management Act,” “where a soldier has committed an act detrimental to his/her dignity”, “where he/she violates or neglects his/her duties.” The Military Disciplinary Rule 180 [Attachment 3], which details the grounds for disciplinary action, includes sexual harassment as the type of sexual violation. The grounds for the aggravated punishment of sexual harassment include ① (i) a severe sexual humiliation or repugion; (ii) a person who causes severe sexual humiliation or aversion; (iii) a person who has a superior position; (iv) a case where a victim has the same criminal power; and (ii) a case where a sexual speech and behavior is deemed not serious in light of social norms; and (iii) a victim’s expression of intent not to punish him/her; and (iv) a serious reflection of his/her duty and attitude of service performance; and (iii) a person’s service performance is sexual harassment; (iii) a person falls under the criteria for imposing disciplinary punishment from one to eight (0).”

2) Determination

A) Whether the Plaintiff violated the gender military discipline

We examine whether the Plaintiff’s act at issue constitutes sexual harassment that occurred in the workplace as a military soldier.

As one of the violations of the duty to maintain dignity prescribed in Article 56 of the Military Personnel Management Act, the meaning of “sexual harassment” among the violations of sexual military discipline prescribed in Article 180 of the Military Personnel Management Act can be found in “sexual harassment on the job” prescribed in the Equal Employment Opportunity and Work-Family Balance Assistance Act.

“Sexual speech and behavior, etc.” under the premise of “sexual harassment in the workplace” under Article 2 subparag. 2 of the Equal Employment Opportunity and Work-Family Balance Assistance Act refers to an act of physical relationship between men and women, or physical, verbal, and visual activity related to male or female physical characteristics, which may objectively cause sexual humiliation or aversion to a general and average person who is in the same position as the other party, in light of the sound common sense and practice of the community. Furthermore, in order to establish sexual harassment under the above provision, the act does not necessarily have to have sexual motive or intent. 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, the content and degree of the act, and whether the act continues once or during a short period, the other party’s act of causing sexual humiliation or aversion to a general and average person at the same position as the other party, and the other party’s act ought to be recognized as having committed sexual humiliation or aversion due to such act.

According to the above facts, even if the Plaintiff did not recognize the situation where he would specially listen to the sexual humiliation before the death on September 2014, it is difficult to view the Plaintiff’s act of having a female victim knife his finger by having the victim knife his hand and knife his hand, and it is deemed that the Plaintiff merely knife the commercial master’s act to have the victim knife, and that it was an act that contains sexual meaning. In addition, the Plaintiff’s speech related to the male-friendly telegu, which was made by the victim around September 2014, is sexual intercourse between men and women. The Plaintiff’s act and speech are judged to be an act that makes the other party feel sexual humiliation or aversion, and in fact, the victim made a statement that he was sexual humiliation.

Therefore, the Plaintiff’s behavior and speaking constitute a “sexual harassment” and constitutes a sexually military violation.

B) Whether the instant disposition deviates from or abused discretionary power

In the case of disciplinary action against a person subject to disciplinary action who is a public official, the disciplinary authority shall take the discretion of the person having authority to take the disciplinary action. However, if the person having authority to take the disciplinary action as an exercise of discretionary authority has considerably lost validity and thus the person having authority to take the disciplinary action is deemed to abuse discretionary authority, the disciplinary action against a public official shall be unlawful. If the disciplinary action against a public official has considerably lost validity under social norms, it should be determined that the contents and nature of the disciplinary action, the administrative purpose to achieve the disciplinary action, the criteria for the determination of disciplinary action, etc. are clearly and objectively unreasonable (Supreme Court Decision 2006Du16786 Decided June 23, 2009).

In this case, as seen earlier, the Plaintiff committed a sexually military violation by making the Plaintiff feel a sense of sexual humiliation. However, the Plaintiff’s behavior and speaking did not frequently take place without increasing the level of the Plaintiff’s behavior and speaking, and expressed the intent that the victim does not want to punish the Plaintiff. The Defendant, who is the person having authority over disciplinary action, was subject to a minor disposition among the punishment for sexual harassment, and it is deemed reasonable in light of all the circumstances.

Therefore, there is no violation of law that deviates from or abused discretionary power, and the plaintiff's assertion against this is without merit.

4. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judge Ma Sung-young (Presiding Judge)