208Guhap19369 Recommendations made by the National Human Rights Commission of Korea

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The National Human Rights Commission of Korea

January 14, 2009

February 4, 2009

1. Of the instant lawsuit, the part of the Defendant’s claim against the Plaintiff on April 8, 2008 for the revocation of each recommendation to pay KRW 2 million in the amount of special human rights education lecture and compensation for damages, which the Defendant sought against the Plaintiff.

2. The plaintiff's remaining claims are dismissed.

3. Litigation costs shall be borne by the Plaintiff.

On April 7, 2008, with respect to the case between the plaintiff and the non-party A, the defendant filed a recommendation to pay KRW 2 million to the special human rights education lecture organized by the defendant against the plaintiff and the non-party A, and to punish the plaintiff against the non-party B.

1. Details of the disposition;

A. The Plaintiff had worked as an insurance solicitor from September 9, 2003 to B (hereinafter “non-party company”) from September 2, 2003. A (former name MM) served as an insurance solicitor from August 30, 207 to September 6, 200 of the same year.

B. A on September 13, 2007, the Plaintiff’s personal expenses at the non-party company as the head of the non-party company 07 Jinari853

The defendant's committee on correction of discrimination made a petition on March 10, 2008 for the reason that the plaintiff, an employer, made a speech or behavior causing severe sexual humiliation and aversion to himself/herself.

In a situation where there is a gal with A, it is judged that the sexual speech and behavior of A, such as sending a mobile phone text message, which is likely to see the Plaintiff's speech and behavior or suggesting sexual intercourse, is sexually sexually sexually humiliated or aversion, and then constitutes sexual harassment under Article 2, Article 2, Article 4, and 5 of the National Human Rights Council of Korea. The defendant recommended the Plaintiff to receive special human rights education organized by the Plaintiff and pay 200,000 won to the representative director of the non-party company (hereinafter referred to as "the decision of this case"). On April 8, 2008, the defendant notified the Plaintiff and the representative director of the non-party company of the above order.

[Grounds for recognition] Gap evidence Nos. 1, Eul evidence Nos. 2, 10 to 13, and the purport of the whole pleadings

2. Whether each of the dispositions in this case is legitimate

A. The plaintiff's assertion

The plaintiff asserts that the period in which A worked as an individual secretary is only one week, and that A did not engage in a speech or behavior corresponding to A's sexual harassment. However, as A was dismissed on the ground of work-free and unauthorized absence, it is true in bad faith of the plaintiff. Thus, the defendant's disposition of this case contains an error of misconception of facts or of misunderstanding of legal principles.

(b) Related statutes;

It is as shown in the attached Table related Acts and subordinate statutes.

C. Judgment on the Defendant’s main defense

(1) The defendant's assertion

The Defendant refers to an administrative disposition, which is the object of an appeal litigation, as an act under the public law of an administrative agency, which is directly related to the rights and obligations of the people. Under the premise that the National Human Rights Commission Act only expects the sincere acceptance of the parties, and that it is merely a pure advisory effect that does not impose penalty surcharges, and thus does not affect the legal status or legal relationship of the parties, and thus, it does not belong to an administrative disposition that becomes the object of an appeal litigation, the instant lawsuit seeking the revocation of each disposition of this case is unlawful.

(2) Of the instant lawsuit, the part regarding the claim for recommendation of the payment of special human rights education lectures and damages against the Plaintiff.

The subject of an appeal litigation is a disposition by an administrative agency (Article 19 of the Administrative Litigation Act); an administrative disposition refers to the exercise or refusal of public authority as a law enforcement with respect to specific facts conducted by an administrative agency (Article 2(1)1 of the Administrative Litigation Act); and when the National Human Rights Commission determines that a violation of human rights or discriminatory act has occurred as a result of investigating a petition under the National Human Rights Commission Act, it may recommend the respondent to implement relief measures provided for in each subparagraph of Article 42(4); and to correct or improve Acts and subordinate statutes, institutions, policies, and practices; the respondent cannot impose any unfavorable sanctions when he/she did not give such a recommendation; and such recommendation does not restrict the respondent's right or impose any duty on the respondent; and the legal interest of the respondent is not subject to a separate and specific regulation, and thus, the part of the defendant's recommendation and administrative litigation against the plaintiff on April 8, 2008 does not constitute an unlawful administrative litigation.

(3) Part of the claim for revocation of disciplinary action recommendation against the representative director of the non-party company among the lawsuit in this case

The National Human Rights Commission Act recognizes that a violation of human rights is found as a result of investigation by the Commission.

disciplinary action against a respondent or a person responsible for human rights violations shall be taken by the head of the competent agency, etc.

The recommendation can be made (Article 45(2)), the head of the agency, etc. to which the recommendation was made by the Committee shall respect it and notify the Committee of the result (Article 45(4)). According to this, it is reasonable to impose a certain legal obligation on the employer (see Supreme Court Decision 2008Du7854, Oct. 9, 2008). The defendant's recommendation to take corrective measures against the representative director of the non-party company on April 8, 2008 constitutes an administrative disposition subject to administrative litigation. Thus, the defendant's defense of safety is without merit.

D. Determination on the merits

(1) On the other hand, Article 2 subparagraph 5 of the National Human Rights Commission Act provides that "the employee, employer, or worker of a public institution makes him/her feel sexual humiliation or aversion due to sexual words or actions utilizing his/her position or in relation to his/her duties, etc., or gives him/her disadvantage in employment on the ground of failing to comply with the sexual words or actions or any other demands, etc." under Article 2 subparagraph 4 (d) of the National Human Rights Commission Act is established if he/she satisfies the requirements under Article 2 subparagraph 5, and it is not necessary to treat a person subject to sexual harassment in favor of, exclude, distinguish, or treat him/her unfavorably (see Supreme Court Decision 2008Du7854, Oct. 9, 208).

(2) According to the reasoning of the judgment below, the Plaintiff’s act of sexual harassment on September 4, 2007 by using text messages No. 1 to 4, Eul’s No. 4-1 to 5, Eul’s No. 6, Eul’s evidence No. 7 and 8-2, and the testimony of witnesses and witnesses, and the overall purport of oral arguments was taken into account. From August 30, 2007 to September 6, 2007, the Plaintiff was not allowed to take advantage of the aforementioned text messages No. 8, and the Plaintiff’s act of sexual harassment on September 4, 2007, 200 to 0, or 7, the Plaintiff was not allowed to take advantage of Nonparty 5’s sexual harassment and to take advantage of his/her face on his/her cell phone No. 1 to 1 to 5, and to 9, to see that the Plaintiff was aware of his/her own will to be a witness.

(3) Accordingly, the defendant's recommendation of correction order to the non-party company in accordance with the decision of the Committee for Correction of Discrimination is lawful, and the plaintiff's assertion is without merit.

3. Conclusion

Therefore, the part of the lawsuit of this case that seeks revocation of the defendant's recommendation of the special human rights education lecture and the compensation for damages against the plaintiff is unlawful. Thus, it is dismissed. The remaining claims of the plaintiff are without merit, and they are dismissed. It is so decided as per Disposition.

The presiding judge shall transfer the number of judges

Judges’ Losses

Judge Lee Yong-soo

Relevant statutes

m. Administrative Litigation Act

Article 2 (Definitions)

(1) The definitions of terms used in this Act shall be as follows:

1. the term “disposition, etc.” means the exercise of public authority by an administrative agency as a law enforcement with respect to a concrete fact, or such exercise;

Refusal, other similar administrative action (hereinafter referred to as "disposition") and decision on administrative appeal

(c)

Article 19 (Subject Matter of Lawsuit for Revocation) The subject matter of lawsuit for revocation shall be disposition, etc.: Provided, That in the case of a lawsuit for revocation of adjudication, it shall be limited to cases where the adjudication itself has an inherent error.

/National Human Rights Commission Act

Article 2 (Definitions) The definitions of terms used in this Act shall be as follows:

4. The term "discriminatory act violating the right of equality" means a sex, religion, disability, age, social status and origin without reasonable grounds.

Area (referring to the place of birth, the place of original domicile, the place of permanent domicile, the principal place of residence before adult age, etc.), the country of origin, and the citizen of origin;

Whether a person is married, such as satisfaction, appearance and other physical conditions, whether he/she is married, such as a married unmarried, unmarried divorce, by death, remarried, de facto marriage, etc., pregnancy or childbirth;

A type of satisfaction or family situation, race, color, thought or political opinion, criminal records whose effect of punishment has been invalidated, sexual records (sex);

(m) an act on the basis of pursuing goals, academic background, medical history (medical history), etc., which falls under any of the following items:

except that a particular person (including a group of particular persons; hereinafter the same shall apply)

C) Provisional favorable treatment to B, and the enactment, amendment, and establishment and enforcement of laws and regulations, the content of which is this, shall be balanced.

No discriminatory act infringing on the right to record (hereinafter referred to as "discriminatory act") shall be deemed a discriminatory act.

(d) Sexual harassment;

5. The term "sexual harassment" means the position in which any employee, employer or worker of a public agency is in service, employment and other relations;

sexual humiliation or aversion by using the foregoing or sexual words or actions in relation to the work, etc.; or

It means giving disadvantages in employment on account of non-compliance with sexual comments and other demands, etc.

Article 25 (Recommendation of Improvement or Rectification of Policies and Practices)

(1) The Commission may, if deemed necessary to protect and improve human rights, recommend related agencies, etc. to improve or correct specific policies and administration or present their opinions.

(2) The heads of related entities receiving any recommendation under paragraph (1) shall respect and endeavor to implement the said recommendation.

(3) Where the head of any institution in receipt of a recommendation under paragraph (1) fails to comply with the details of such recommendation, he/she shall explain the reasons therefor in writing to the Committee.

(4) The Commission may, if deemed necessary, publish its recommendation and opinions under paragraph (1) and the details explained by the heads of related entities under paragraph (3).

Article 30 (Matters Subject to Investigation by the Commission)

(1) In any of the following cases, any person who has suffered a violation of human rights or discriminatory act (hereinafter referred to as "victim") or any person or organization that knows such fact may file a petition with the Commission:

1. Performance of the duties of State agencies, local governments, or detention facilities (the legislation of the National Assembly and the legislation of courts, and the Court under the Constitution;

In connection with trials, any violation of the human rights guaranteed under Articles 10 through 22 of the Constitution or discrimination;

If he/she was subject to such

2. Where a discriminatory act has been committed by a juristic person, organization or private individual.

(2) Deleted.

(3) Even if no petition is filed under paragraph (1), the Commission may conduct an ex officio investigation if there is a reasonable ground to believe that a violation of human rights or a discriminatory act has been committed and the content thereof is deemed serious.

(4) Necessary matters concerning the procedures and methods of filing a petition under paragraph (1) shall be prescribed by the rules of the Commission.

Article 44 (Recommendation of Remedies, etc.)

(1) If the Commission determines as a result of an investigation on a petition that a violation of human rights or a discriminatory act has occurred, it may recommend the following to the respondent, the head of the relevant subordinate institution, organization or supervisory organization (hereinafter referred to as "affiliated institution, etc."):

1. Implementation of safeguard measures under the subparagraphs of Article 42(4);

2. Correction or improvement of Acts and subordinate statutes, systems, and policy practices;

(2) The provisions of Article 25 (2) through (4) shall apply mutatis mutandis to the head of the competent agency, etc. in receipt of a recommendation under paragraph (1).

Article 45 (Accusation and Recommendation of Disciplinary Action)

(1) The Commission shall, as a result of investigation on a petition, constitute a criminal act and criminal punishment is required therefor. If it deems it necessary, it may file a criminal charge with the Prosecutor General of the Supreme Prosecutors' Office: Provided, That if a defendant is a soldier or a civilian military employee, the Commission may file a criminal charge with the Chief of Staff of the military

(2) Where the Commission deems that a human rights violation exists as a result of investigation on a petition, it may recommend disciplinary action against the respondent or a person responsible for the violation of human rights to the head of the competent agency,

(3) The Prosecutor General, the Chief of Staff of the armed forces, or the Minister of National Defense shall, upon receiving an accusation under paragraph (1), terminate an investigation within three months from the date of receiving the accusation and notify the Committee of the results thereof: Provided, That if it is impossible to complete the investigation within three months, the reason therefor shall be explained.

(4) The head of a competent agency, etc. who receives a recommendation from the Committee under paragraph (2) shall respect such recommendation and notify the Committee of the determination.