2020Nu11977 Revocation of disciplinary action

A

Law Firm E&S Partners

[Defendant-Appellant]

Superintendent of Education of Gwangju Metropolitan City

Attorney Kim In-bok, Counsel for the plaintiff-appellant

Gwangju District Court Decision 2019Guhap14933 Decided August 13, 2020

December 11, 2020

January 8, 2021

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance is revoked. The defendant's disposition of suspension from office against the plaintiff on April 17, 2019 shall be revoked for three months.

1. Quotation of the first instance judgment

The reasoning for the court’s explanation on the instant case is as stated in the reasoning of the first instance judgment, except for adding the judgment as set forth in paragraph (2) below to the Plaintiff’s assertion emphasized by this court. Thus, pursuant to Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act, the Plaintiff’s assertion as the ground for appeal is accepted (other contents asserted by this court as the ground for appeal are not significantly different from those asserted by the Plaintiff in the first instance judgment, and even if all the evidence presented by the first instance court

2. Additional determination

A. The plaintiff's assertion

The Plaintiff, at the time of the instant case, only engaged in the act under the supervision of E for educational purposes, and did not have the intention or purpose of sexual harassment. Therefore, the Plaintiff’s act does not constitute sexual harassment.

B. Determination

In order for sexual harassment to be established, the act does not necessarily require sexual motive or intent to the perpetrator (see, e.g., Supreme Court Decision 2017Du74702, Apr. 12, 2018). Therefore, even if the Plaintiff committed such act for educational purposes as alleged therein, it constitutes an act of having the general and average person in the same position as the other party feel sexual humiliation or aversion, and thereby, if the other party to the act was sexual humiliation or aversion, then the act constitutes sexual harassment.

In full view of the contents and the purport of the evidence Nos. 2 and 6 evidence Nos. 1, 4, 5, 6, 7, and 8, E was a book at the school library. However, the Plaintiff’s act of having his mobile phone screen go to the right direction of the E, E’s act of moving to the right right and right and right and right, other students who have observed this act, “the need to go to go to the right and right,” and the Plaintiff’s act was prohibited, and each fact at the above library is acknowledged. The Plaintiff’s act constitutes an act of having the general and average person in the same place as the other party objectively, causing sexual humiliation or aversion, and thus, it is sufficient to view that the Plaintiff’s act was not an educational act. Accordingly, it is sufficient that the Plaintiff’s act of sexual harassment was not an educational act.

The plaintiff's above assertion cannot be accepted.

3. Conclusion

The plaintiff's claim shall be dismissed for lack of reason. The judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed for lack of reason.

Judge Choi Jong-chul

Judges Yang Young-hee

Judge Park Jong-hun