(영문) 서울행정법원 2015.8.27.선고 2015구합5665 판결

A. The Plaintiff is a senior executive officer appointed as an administrative officer on March 4, 1985 and served as the head of the Ministry of Culture, Sports and Tourism from April 17, 2013.

B. On October 15, 2014, following a resolution of the Central Disciplinary Committee, the Defendant issued a disciplinary measure against the Plaintiff on the ground that the Plaintiff’s act of sexual harassment to D, an employee of the Korea Press Foundation C team of the Korea Press Foundation, accompanied by the Plaintiff on June 12, 2014, which was a business trip overseas, violated Article 63 (Duty to Maintain Dignity) of the State Public Officials Act (hereinafter referred to as “Disciplinary Reason 2”) on the ground that the Plaintiff’s act of making an inappropriate statement that he/she was sexual harassment to D, an employee of the Korea Press Foundation C team of the Korea Press Foundation (hereinafter referred to as “Disciplinary Reason 1”), and that the Plaintiff’s act of making an inappropriate statement that could give him/her a late time during official business trips (hereinafter referred to as “the instant disciplinary measure”) violated Article 63 (Duty to Maintain Dignity) of the State Public Officials Act. The said disciplinary measure should be modified on January 28, 2015 (hereinafter referred to as “the instant disciplinary measure”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 2, and the purport of the whole pleadings

2. Whether the instant disciplinary action is lawful

A. The plaintiff's assertion

The plaintiff asserts that the disciplinary action in this case should be revoked because it is unlawful for the following reasons.

1) procedural defect

Although the grounds for disciplinary action that the defendant requested the Central Disciplinary Committee to decide on a disciplinary action was a series of improper remarks that can be perceived as sexual harassment, the Central Disciplinary Committee made it the subject of deliberation to ‘other breach of dignity maintenance' and ‘non-statement of the person who has the right to request disciplinary action' as the subject of deliberation.

2) Material defect

A) Non-existence of the grounds for disposition

(1) The Plaintiff’s speech at issue as to whether sexual harassment was a cause for disciplinary action No. 1 is a private drinking place, which is possessed by the Plaintiff’s private behaviors accompanying the Plaintiff’s business trip after the Plaintiff completed the schedule of all official events. Therefore, the Plaintiff’s above speech should be deemed as having no relevance to duties.

In addition, in full view of the following: (a) the Plaintiff’s speech at issue does not include a sexual meaning at all; and (b) does not seem to have caused sexual humiliations or aversions if the general and average persons were to take place; and (c) at the time of the drinking place, D does not appear to constitute sexual harassment, in full view of the following: (a) the Plaintiff’s speech at issue did not indicate an displeasure to the Plaintiff’s speech; and (b) did not actively participate in the conversation with his/her speech while

(2) Each of the instant remarks pertaining to the grounds for disciplinary action No. 2 cannot be deemed as a violation of the duty to maintain dignity, merely because they were somewhat fluent remarks.

In addition, the Plaintiff’s return to a lodging room after completing his/her business during his/her overseas business trip period, and then drinking and drinking for one hour to 30 minutes, but it cannot be deemed that the Plaintiff’s act of drinking and drinking constitutes an act of impairing the dignity of a public official who is a public official.

B) A deviation or abuse of discretionary authority

Even if the grounds for disciplinary action of this case are recognized, the instant disciplinary action is too fatal to the Plaintiff, who is a senior public official, and thus, it deviates from or abused discretionary power.

B. Relevant statutes

It is as shown in the attached Form.

1) The Plaintiff, while working as the head of the Ministry of Culture, Sports and Tourism, was on June 10 through June 14, 2014 to attend the “ASEN+3 Information Minister Meeting” while serving as the head of the Ministry of Culture, Sports and Tourism, was on overseas business triped with the head of the Ministry of Culture, Sports and Tourism, the head of the F division affiliated with the Ministry of Culture, Sports and Tourism, G library, and D. At the time, D was on overseas business triped with the head of the Korea Press Foundation, which is an affiliated organization of the Ministry of Culture, Sports and Tourism, and carried out business affairs such

2) On June 12, 2014, the Plaintiff completed the schedule for official events, such as conference and conference conference, from 22:30 to 24:00, and then, at the Plaintiff’s lodging room, the Plaintiff sought to encourage and promote friendship with the above F division of F, G, and D to drink while drinking alcohol (hereinafter “the instant drinking site”), and at the time D recorded the conversation on the instant drinking site in a Handphone. In the instant drinking site, the parts related to the instant disciplinary cause during the Plaintiff’s speech to D are as follows (in the order of time).

G 서기관이 “아 우리 D씨가 남자친구도 없고 결혼에 대해 생각이 없다고 그래서.”라고말하자, 원고는 “수많은 놈들이 있겠지. 이렇게 피부가 고운데...”, “예쁜건 모르겠는데”, “아, 나 진짜로 여자로 생각 안해봤는데...”, “남자 많이 따르겠네. 후~여성스럽네", "아, 너무 여성스러워" 라고 말함(이하 '제1 발언’이라 한다).② 원고가 “뭐야? 나만 먹어? 그러면 안 되지. 그러지마, 지금 몇 잔째야. 지금, 4잔?”이라고 말한 후 G 서기관이 “아이..잔..(잘 안들림)”이라고 말하였고, 다시 원고가 “내가 업어다 줄게, 아니면 요 앞에서 자.”라고 말함(이하 '제2 발언'이라 한다)③ G 서기관이 D에게 술을 따라주는 상황에서 원고가 “이거 또 지 애인이라고 이렇게 따라 줄 거야? G 서기관?” 이라고 말함(이하 '제3 발언'이라 한다).(④) D이 화장실을 다녀온 직후 원고가 D에게 "오줌 쌌어?"라고 말함(이하 '제5 발언'이라한다).⑤ 원고가 “D씨는 참 피부가 곱다. 맑아 피부가. 아침이슬처럼.”이라고 말함(이하 제4 발언

'이라 한다).⑥ 원고가 “이런 회의면 D이랑 나랑 둘이 가면 되지 과장은 왜 오고 서기관은 왜 오냐? 우리 둘이 왔으면 엄청 재밌었어... 이 사람들 때문에 뭔가 아무것도 안 돼요.”라고 말함(이하 '제6 발언'이라 하고, 제1 내지 6 발언을 모두 말할 때에는 '이 사건 각 발언'이라한다).

3) After having returned from the business trip, D sent a hand-on text message to the effect that “The Plaintiff saw that it was difficult for its affiliated agencies to make a report on this point as its staff because of a number of remarks made by the Plaintiff at the drinking place.”

4) On June 17, 2015, D reported to the Korea Press Foundation, which is an affiliated agency, and the labor union, that it was sexual harassment from the Plaintiff during the overseas business trip period. The Korea Press Foundation requested the Ministry of Culture, Sports and Tourism to grasp the truth and take measures.

5) D received hospital treatment immediately after a business trip and received hospital treatment between June 20, 2014 and July 19, 2014.

6) The Yonhap News reported to the effect that high-ranking officials of the Ministry of Culture, Sports and Tourism posted a statement of sexual harassment to female employees of affiliated organizations at the latest overseas business trip site, and the Plaintiff was released from his/her position on July 21, 2014.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 4, 8, Eul evidence No. 1 and the purport of the whole pleadings is determined.

1) Whether procedural defects exist

A) The Disciplinary Committee is bound to deliberate and decide on the grounds for disciplinary action for which a disciplinary decision was requested by a person who has the right to request a disciplinary resolution, and it is not possible to make a disciplinary decision by adding other grounds for disciplinary action, such as fundamental revision of the grounds for disciplinary action for which a disciplinary decision was requested or circumstances that occurred after a disciplinary decision was made (see Supreme Court Decisions 84Nu299, Sept. 25, 1984; 2010Da10919, Jan. 27, 2012).

B. According to the overall purport of evidence Nos. 1 and 5 as to the instant case, the Defendant: (a) requested the Central Disciplinary Committee to decide on disciplinary action on July 14, 2014; and (b) made a series of improper remarks that could have been recognized as sexual harassment, such as the Plaintiff’s “if there was much more time to have been placed in Korea” during the overseas business trip from June 10 to June 14, 2014; (c) determined that the act of imposing mental burden constitutes a violation of Article 63 (Duty to Maintain Dignity) of the State Public Officials Act; (d) however, on October 10, 2014, the Central Disciplinary Committee determined that the Plaintiff’s sexual harassment on June 12, 2014 during the said business trip was sexual harassment against D on June 12, 2014 during the said business trip, and that the Plaintiff violated the duty to maintain dignity as a ground for disciplinary action (Article 263) of the State Public Officials Act).

According to these facts, it is reasonable to view that the Central Disciplinary Committee erred in making a disciplinary decision by adding the "act with a drinking job at the latest during official business trips" to a new disciplinary cause, not the disciplinary cause for which the disciplinary decision was requested. Therefore, this part of the Plaintiff's assertion is justified within the scope of such recognition.

Therefore, the above part of the grounds for disciplinary action shall be determined except for the above unlawfully added grounds for disciplinary action.

2) Whether there is a substantive defect

A) the existence of the reasons for the action

(1) As to the grounds for disciplinary action 1, Article 2 subparag. 3 (d) of the General Committee on Human Rights of the Republic of Korea provides that "an employee, employer, or worker of a public institution (referring to State agencies, local governments, schools at all levels established under Article 2 of the Elementary and Secondary Education Act, Article 2 of the High Education Act, and other Acts, and public service-related organizations under Article 3-2 (1) of the Public Service Ethics Act) shall make him/her feel sexual humiliation or aversion due to sexual words or actions by taking advantage of his/her position or in relation to his/her duties, or give disadvantages in employment on the ground that he/she does not comply with sexual words or actions or other demands."

Here, the requirement of "using position or in relation to duties, etc." indicates the comprehensive business relevance, and includes not only the case where sexual words and actions have been made by taking advantage of the opportunity to perform duties or the performance of duties, but also the case where sexual words and actions have been committed by abusing authority or undermining the performance of duties. Whether a certain sexual words and actions are recognized as related to duties shall be determined by taking into account the specific circumstances such as the relationship between both parties, the place and situation where the acts have been committed

In addition, “sexual speech and behavior, etc., which is a prerequisite for sexual harassment” means physical, verbal, and visual activity related to the physical relationship between men and women, or the physical characteristics of men or women, and objectively, in light of the sound common sense and practice of the community, an act that may cause the general and average person at the same location as the other party to feel sexual humiliation or aversion. In order to establish sexual harassment under the above provision, the act does not necessarily require sexual motive or intent to the actor. 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 in one time or in a short period, or continuous, it should be objectively acknowledged that the other party to the act has caused sexual humiliation or aversion (see, e.g., Supreme Court Decision 2009Du678, Apr. 16, 2009).

B. In full view of the following circumstances as to whether the business relationship of each of the instant remarks is recognized, comprehensively taking into account whether the Plaintiff’s remarks were recognized, the facts acknowledged earlier, and the entries of Gap evidence Nos. 2 and 4, and the purport of the entire pleadings, it is reasonable to deem that each of the instant remarks made by the Plaintiff to D accompanying the Plaintiff to the instant drinking place during the overseas business trip was carried out on the extension of the overseas business trip or on the spot of a ceremony related to the said business.

① The Plaintiff is a senior public official of the Ministry of Culture, Sports and Tourism, and D is an employee of the Korea Press Foundation under the direction and supervision of the Ministry of Culture, Sports and Tourism, and became accompanied by the Plaintiff and five-day overseas business trips for the revision of the speech.

② In light of the timing and place of the instant drinking place open, the participants, and the contents of conversation, etc., the instant drinking place appears to be a type of meeting prepared by the Plaintiff in order to encourage the Plaintiff’s success in the business trip and promote friendship, such as D, where the Plaintiff had completed the schedule of all official events, such as conference and interview, at the overseas business trip site.

③ In light of the Plaintiff’s use of the expression “at the last day of the event” with respect to the instant drinking place in the written statement of June 23, 2014 that was submitted to the Central Disciplinary Committee, the Plaintiff appears to have been aware of the instant drinking place in a non-private drinking place rather than a private drinking place gathering.

C. In full view of the following circumstances as to whether each of the instant remarks constitutes “sexual speech and behavior, etc.”, the facts acknowledged earlier, the entries of Gap evidence No. 4, and the purport of the entire pleadings, as a whole, the Plaintiff’s remarks against the employees D of the affiliated organization accompanying the business trip during the business trip abroad cannot be seen as an act of causing sexual humiliation or aversion to a general and average person in the same place as D objectively, and thus, cannot be deemed as constituting sexual harassment.

① In light of the fact that the Plaintiff’s completion of all official events during the period of the overseas business trip, and the Plaintiff and D were the first met in the overseas business trip of this case (in the instant drinking field, the dialogue between the Plaintiff and G administrative agency was mainly divided), and that both the F director and G administrative agency accompanying the business trip were present, it is unreasonable to deem that the Plaintiff made each of the instant remarks to D with any sexual motive or intent.

② Rather, when the Plaintiff recommends that a female be subject to alcohol in the instant drinking place, the Plaintiff would be sexual adviser, and “D” would not take the drinking to the effect that a female is the only woman present at the drinking place, such as speaking to the effect that a female is suffering from drinking by law.

③ At the time of the instant drinking place, D did not have any displeasure to the Plaintiff’s remarks on each of the instant drinking places, and actively participated in the dialogue with the instant drinking places, rather than throughout the conversation with the instant drinking places.

Furthermore, in light of the content and degree of each of the instant remarks, there is no excessive aspect. However, in full view of the overall context, the Plaintiff appears to have given the appearance of D or expressed friendly ties to encourage the atmosphere of a meeting, and cannot be deemed to have relation with the physical relationship between men and women or the physical characteristics of women.

Therefore, the first ground for disciplinary action is not recognized, and this part of the plaintiff's assertion is justified.

B) As to the second disciplinary reasons

(A) A state public official shall not engage in any conduct detrimental to his/her dignity, regardless of whether it is a matter of duty, pursuant to Article 63 of the State Public Officials Act. Here, the dignity refers to a person who is a sovereign citizen, and thus has no knife as he/she performs his/her duties (see, e.g., Supreme Court Decision 2011Du20079, Sept. 12, 2013).

As to the instant case, comprehensively taking account of the content, degree, time and place of each of the instant remarks, relationship with the other party, and the fact that each of the instant remarks was reported to the press and caused water, it is reasonable to deem that the Plaintiff’s each of the instant remarks did not amount to sexual harassment, but did not make an inappropriate speech that could give an opportunity to displeasure the female employees of the affiliated organization during the overseas business trip period, and thus, damaged the public official’s dignity.

C. Therefore, the second ground for disciplinary action is recognized and the plaintiff's allegation in this part is without merit.

C) Comprehensively taking account of the following circumstances acknowledged as above, whether to deviate from or abuse discretionary power and the purport of the entire pleadings, the instant disciplinary action against the Plaintiff, which is subject to an unwritten warning, cannot be deemed as a deviation from or abuse of discretionary power due to excessive suspicion to the Plaintiff.

① The Plaintiff, as a high-ranking public official of the Ministry of Culture, Sports and Tourism, requires high level of personality and morality compared to the general public officials due to its nature.

Nevertheless, the plaintiff made an inappropriate statement on behalf of the government on behalf of the government during the period of overseas business trip, and this fact was reported to the media.

③ The Plaintiff’s act of misconduct was in violation of the duty to maintain the dignity of public officials, resulting in the reliance on the honor of affiliated agencies and the general public’s senior public officials.

④ Furthermore, the Ministry of Personnel Management mitigated the previous reprimand disposition by taking account of the content and degree of each of the instant remarks, the Plaintiff’s reflective effort to recover damage, etc. Accordingly, the Plaintiff’s assertion on this part is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.