205du6461 Revocation of disposition of revocation of sexual harassment

A

The National Human Rights Commission of Korea

Seoul High Court Decision 2004Du4286 Delivered on May 26, 2005

June 14, 2007

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1, 2, 3, and 5, Article 2 subparag. 2 of the former Act on Prohibition of and Remedies for Gender Discrimination (amended by Act No. 2003, 5, 2915, hereinafter referred to as the “Act”) provides that “sexual harassment means that the act of causing employees, employers, or workers of public institutions to feel sexual humiliation or aversion by sexual words, actions, etc. using their status or in relation to their duties, etc., or giving disadvantages in employment on account of failing to comply with the sexual words, actions, etc.” The term “sexual words, actions, etc.” as a premise of sexual harassment refers to physical relationship between men and women, or physical, verbal, and visual acts related to the physical characteristics of male or female, and having them feel sexual humiliation or aversion with the other party objectively, in light of sound common sense and practice of the community, it means that the other party’s act may feel sexual humiliation or aversion with the other party’s sexual humiliation, not necessarily have to be objectively acknowledged as the other party’s act’s specific motive or behavior.

In addition, sexual harassment cannot be established solely on the ground that the other party flasing sexual humiliation or aversion, unless the other party objectively causes a general and average person in the same place as the other party to feel sexual humiliation or aversion.

The court below acknowledged the fact that the plaintiff, an assistant principal of B elementary school, attended the school principal C, the principal of the school, D with the student guidance, the evaluation of the basic academic background for the third year nationwide elementary school, and the English guidance for the first semester, and that the three male teachers among the school teachers in the third year were in the middle year, and the three male teachers were in the middle year of the drinking. The court below determined that it is difficult to see that the plaintiff was in violation of the above social order of the plaintiff's sexual motive and behavior in light of the following circumstances: in light of the contents of the interview at the above meeting place, and the circumstances that the plaintiff did not have a sound sexual motive and behavior, it is difficult to see that the plaintiff was in violation of the above social order of the plaintiff's sexual motive and behavior in the middle of the meeting; in light of the above circumstances, it is difficult to see that the plaintiff did not have a sexual motive and behavior in the middle of the 30 thousand male teachers, and 3 female teachers were in the middle of the meeting.

In light of the above legal principles and records, since the plaintiff's behavior of this case does not constitute sexual speech and behavior that causes female teachers to feel sexual humiliation or aversion, the court below's decision that this case's sexual harassment is unlawful is just and there is no violation of the rules of evidence or misapprehension of legal principles as to interpretation of sexual harassment under Article 2 (2) of the Act, as alleged in the grounds of appeal.

2. The decision of sexual harassment under Article 28 of the Act on the fourth ground of appeal is a binding act. Therefore, the ground of appeal on this part that there is no illegality of deviation or abuse of discretion in the decision of this case on the premise that the decision of sexual harassment is a discretionary act is without merit.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

The presiding judge shall have jurisdiction over the case.

Justices Kim Jae-sik

Justices Lee Hong-hoon