(영문) 광주지방법원 2020.8.13. 선고 2019구합14933 판결

A. The Plaintiff was appointed as B middle school teachers on March 1, 200 and served in Gwangju Middle School (hereinafter referred to as “instant school”) from March 1, 2018 to February 28, 2019, and is working in D middle school from March 1, 2019.

나. 이 사건 학교의 여학생인 E의 보호자는 2018. 11, 12. 이 사건 학교의 교장을 면담하여 '원고가 2018. 5. 18.경 이 사건 학교 도서관에서 E의 뒤에 쭈그려 앉아 E의 치마 밑부분에 핸드폰을 왔다갔다하는 행동을 하였다'는 취지로 말하였고, 이를 보고받은 피고는 2018. 11. 22. 원고를 수사기관에 고발하였는데, 광주지방검찰청 검사는 2018. 12. 17. E 측에서 원고의 처벌을 원하지 않고, 피해 진술도 거부하여 더 이상 수사를 진행할 수 없다는 이유 등으로 원고에 대해 각하처분을 하였다.

C. On January 31, 2019, the Defendant requested the Gwangju Metropolitan City General Disciplinary Committee for Public Educational Officials to adopt a heavy disciplinary resolution on the ground that the Plaintiff violated Article 63 (Duty to Maintain Dignity) of the State Public Officials Act. On February 25, 2019, the said Disciplinary Committee decided to take a disciplinary measure for three months of suspension from office against the Plaintiff. On March 4, 2019, the Plaintiff filed a request for reexamination with the Gwangju Metropolitan City Special Disciplinary Committee for Public Educational Officials, but the said Special Disciplinary Committee dismissed the Plaintiff’s request for reexamination on March 29, 2019, and the Defendant was subject to a disposition for three months of suspension from office against the Plaintiff on April 17, 2019 (hereinafter “instant disposition”).

D. On May 13, 2019, the Plaintiff filed an appeal seeking revocation of the instant disposition with the Teachers’ Appeal Committee. However, on August 7, 2019, the Teachers’ Appeal Committee rendered a decision to dismiss the Plaintiff’s claim, and the said decision was served on the Plaintiff on August 22, 2019.

[Ground of recognition] Unsatisfy, Gap evidence 1 through 6 (including paper numbers; hereinafter the same shall apply), Eul evidence 1, 4 through 8, the purport of the whole pleadings

2. Summary of the plaintiff's assertion

A. The Plaintiff, at the school library, which is a place disclosed at the time of the instant case, rendered lessons for the purpose of education in order to mislead the Plaintiff that he may suffer from damages if he gets excessively short, and there was no intention or purpose of sexual harassment. In addition, it should be deemed that the Plaintiff did not feel sexual humiliation in view of the fact that he / she did not raise any problem for six months, and that he/she had improved the degree of sexual intercourse. Furthermore, the Rule on Disciplinary Action on Public Educational Officials, etc. (Article 135 of the Enforcement Ordinance of the Ministry of Education, Jul. 26, 2017; hereinafter referred to as the “Rules of Disciplinary Action”) [Attachment] defines sexual harassment as sexual harassment under Article 2 subparag. 3 (d) of the National Human Rights Commission Act, and the Plaintiff’s act does not correspond to it. Accordingly, the instant disposition is unlawful (hereinafter referred to as “the Plaintiff’s assertion”).

B. Since the defendant accused the plaintiff to an investigation agency, the decision of the investigation agency should be respected, the prosecutor of the Gwangju District Prosecutors' Office rejected the disposition of non-prosecution against the plaintiff and rendered the disposition of this case, and there is procedural defect in the disposition of this case (hereinafter "the second argument").

C. The Defendant did not provide minimum fact-finding and sufficient opportunity for explanation to the Plaintiff, and the instant disposition became an illegal disposition that deviates from and abused the Defendant’s discretionary power (hereinafter “third argument”). As the Plaintiff became a sexual corruption teacher, the instant disposition is an illegal disposition that deviates from and abused the Defendant’s discretionary power.

3. Relevant statutes;

It is as shown in the attached Form.

4. Determination

A. Determination as to the First Claim

When comprehensively considering the following circumstances, it is reasonable to view that the Plaintiff violated the duty to maintain dignity as a public official by sexual harassment against E. Therefore, the Plaintiff’s above assertion is without merit.

1) Article 2(3)(d) of the instant Disciplinary Rule [Attachment Table] provides that “Sexual harassment falling under the violation of the duty to maintain dignity refers to sexual harassment under Article 2(3)(d) of the National Human Rights Commission of Korea.” The above item (d) provides that “a person engaged in a public agency (referring to State agencies, local governments, various levels of schools established under Article 2 of the Elementary and Secondary Education Act, Article 2 of the Higher Education Act, and other Acts, and public service-related organizations under Article 3-2(1) of the Public Service Ethics Act) who causes sexual humiliation or aversion due to sexual words, actions, etc. by taking advantage of his/her position or duties, or giving disadvantage in employment on the ground that he/she does not comply with sexual words, actions, or other demands, etc.”

2) 원고는 2018. 5. 18. 점심시간 무렵 이 사건 학교의 도서관에 입장하였고, 당시 도서관에는 도서부 학생 2명과 E 학생이 있었다. E는 도서대출창구 쪽에 서서 신간 악보집을 보고 있었는데, 원고는 E의 뒤쪽으로 다가가 무릎을 굽혀 쭈그려 앉은 후, 자신의 휴대전화 화면을 E의 치마 속 방향으로 향하도록 하고, E의 무릎 가까이에 댄 채 좌우로 움직이는 행동을 하였다. 이를 목격한 다른 학생이 "선생님 뭐하세요"라고 하며 원고의 행동을 제지하자, 원고는 "장난하는거야"라는 취지의 말을 하고 위 도서관에서 나갔다.

3) The Plaintiff’s above behavior is sufficient to view it as an act that causes E to feel sexual humiliation or aversion, and it cannot be deemed that the Plaintiff’s behavior does not constitute sexual harassment under the above provision solely on the ground that the mobile phone screen was removed at the time, or E did not raise an issue for six months, or that the record improved. The Plaintiff’s above behavior was conducted by the library in the instant school where the Plaintiff works as a teacher at the time of the trial of the day the class took place, and for E where the Plaintiff was a class student who was in charge of the Plaintiff’s attendance, which can be evaluated as having committed sexual speech and behavior, etc. against E by using the teacher’s position or in relation to his duties.

B. Determination as to Section 2

Although the plaintiff must respect the decision of rejection by the investigative agency, the defendant argues to the effect that there is procedural defect by making the disposition in this case, but disciplinary action and investigation are different from its purpose and character, and since disciplinary action and investigation are not bound by the person having authority to take action, it cannot be deemed that there is procedural error in the procedure that the defendant made the disposition in this case even the prosecutor's non-prosecution disposition (the prosecutor's rejection disposition against the plaintiff also rejected the statement by the victim and did not want to proceed with the case, only the purport that it is not necessary to proceed with the investigation).

C. Judgment on the third ground for appeal

1) Whether to take a disciplinary measure against a person subject to disciplinary action, who is a public official, is at the discretion of the person having authority to take the disciplinary measure. Therefore, the disciplinary measure may be deemed unlawful only when it is deemed that the person having authority to take the disciplinary measure has abused the discretionary power, as the person having authority to take the disciplinary measure has considerably lost validity under the social norms. According to specific cases, the content and nature of duties, the content and nature of the facts causing the disciplinary measure, the administrative purpose that the person intends to achieve through the disciplinary measure, and the criteria for a disciplinary measure, etc., should be considered as cases where the contents of the disciplinary measure can be objectively and clearly deemed unreasonable in light of all the factors, including the characteristics of duties, the contents and nature of the offense, the administrative purpose that the person having authority to take the disciplinary measure seeks to achieve through the disciplinary measure, and the criteria for a disciplinary measure determined accordingly, barring any special circumstance, such as the lack of reasonableness (see, e.g., Supreme Court Decision 2017Du47472, Nov. 9, 2017).

2) The Defendant rendered the instant disposition on the ground that the Plaintiff committed sexual harassment and violated Article 63 (Duty to Maintain Dignity) of the State Public Officials Act, by applying Article 2(1) [Attachment Table] of the Disciplinary Rule to the Plaintiff, and the instant disposition against the Plaintiff was made. The evidence submitted by the Plaintiff alone alone does not deem that the standard for disciplinary action is unreasonable.

3) The Plaintiff’s act was sufficient for E to feel sexual humiliation and aversion, and, in particular, the Plaintiff’s act seems to have committed an act that the Plaintiff, who is responsible for protecting and guiding students, as a teacher, had a high possibility of social criticism. The Plaintiff asserted to the effect that there was no intention of sexual harassment, and that it was an educational purpose, but it is difficult to recognize it as follows. Even if the Plaintiff had an educational purpose, it is difficult to regard the Plaintiff’s act that took place without any explanation to E as an ordinary permissible act. In full view of the above circumstances, the Defendant’s disposition of this case cannot be said to have significantly lost validity based on the evidence submitted by the Plaintiff. Accordingly, the Plaintiff’s assertion that the instant disposition of this case deviates from and abused the Defendant’s discretionary power is without merit.

5. Conclusion

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