Plaintiff (Law Firm Law Firm Roon, Attorneys Oban et al., Counsel for plaintiff-appellant)

Teachers' Appeals Review Committee (Law Firm, Attorneys Kim Sang-ho et al., Counsel for the plaintiff-appellant)

The Intervenor joining the Defendant (Law Firm Jungwon, Attorneys Lee Young-soo et al., Counsel for the defendant-appellant)

November 2, 2016

1. The plaintiff's claim is dismissed.

2. The costs of the lawsuit shall be borne by the Plaintiff, including the costs incurred by participation.

The decision made by the Defendant on July 8, 2015 between the Plaintiff and the Intervenor joining the Defendant (hereinafter “ Intervenor”) on the claim for revocation of dismissal is revoked.

1. Details of the decision;

A. On March 1, 2002, the Plaintiff was newly appointed as a full-time lecturer at ○○○ University (hereinafter “instant university”) established and operated by ○○○○ Private Teaching Institutes. On April 1, 2004, the Plaintiff was promoted as an associate professor on March 1, 2008, as an associate professor, and on March 1, 2013, as an associate professor at △△△△△△△, respectively, and was employed at the instant university.

B. On April 10, 2015, the Intervenor dismissed the Plaintiff on the ground that “the Plaintiff repeatedly committed sexual harassment and sexual harassment to female students belonging to the department as follows and constitutes each subparagraph of Article 61(1) of the Private School Act (the effective date is April 14, 2015; hereinafter “instant dismissal disposition”).

(2) The Plaintiff’s act of raising the victim’s 1 to 20 years old knife the victim’s 1 to 3 years old knife the victim’s knife and 1 to 4 years old knife the victim’s knife the victim’s knife. (hereinafter “the Plaintiff’s act of raising the victim’s knife 1 to 6 years old knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife). (3) The Plaintiff’s act of raising the victim’s knife knife knife knife knife knife knif.).

C. On May 7, 2015, the Plaintiff appealed and filed a petition review with the Defendant seeking the revocation of the instant dismissal disposition. However, on July 8, 2015, the Defendant rendered a decision to dismiss the Plaintiff’s claim on the ground that “(i) there is no procedural defect in the instant dismissal disposition; (ii) there is no sexual harassment and sexual harassment against female students belonging to the department and department; and (iii) it is difficult for the Intervenor to regard that the Plaintiff was significantly deprived or abused of discretionary power in the instant dismissal disposition.” (hereinafter “instant decision”), and notified the Plaintiff thereof.

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 1, Eul 1 and 2 (including relevant branch numbers), the purport of the whole pleadings

2. Whether the decision of this case is legitimate

A. Existence of grounds for disciplinary action against Nonparty 1

1. Absence of certain grounds for disciplinary action

The grounds for disciplinary action No. 1-1, No. 1-5, and No. 1-6 are not recognized for the following reasons. The Plaintiff’s allegation that there is no ground for disciplinary action has merit.

A) As to grounds of disciplinary action No. 1-1

On December 17, 2014, the Plaintiff stated that Nonparty 1 appeared as a witness of the Daegu District Court case No. 2016No. 1247 (hereinafter “related criminal case”) and Nonparty 1 did not hear any sound suitable for her boom, and Nonparty 7 stated that Nonparty 1 testified to Nonparty 4, a student of the same department after December 17, 2014, and that she attached to his/her male ditch. However, according to the evidence No. 22-3 and evidence No. 23-3, Nonparty 7, who was attending the above department office with Nonparty 1, at the time, stated that Nonparty 1 was unable to hear any sound suitable for her boom, and that Nonparty 1 stated that Nonparty 2 stated the same purport as Nonparty 1’s testimony to Nonparty 1, a student of the same department, and there is no other evidence to prove that Nonparty 1 had the same effect as the above evidence No. 2 of the Disciplinary Reason No. 17, Dec. 17, 2014.

B) As to grounds of disciplinary action No. 1-5

According to the witness Nonparty 1’s testimony, it may be acknowledged that the Plaintiff continued to capture the Plaintiff’s arms when she spawns the students in the school corridor of this case. However, such circumstance alone is difficult to deem that the Plaintiff forced Nonparty 1 to capture the students. Therefore, among the grounds for disciplinary action No. 1-5, only the Plaintiff’s act of spawning the students in the school corridor of this case remains as grounds for disciplinary action, and such act cannot be deemed as grounds for disciplinary action.

C) As to grounds of disciplinary action No. 1-6

소외 1은 관련 형사 사건의 경찰 수사 단계(갑 제17호증의 6 참조)와 이 법정에서 ‘원고가 연구실에서 자신의 엉덩이를 발로 찼다’고 진술하였을 뿐이고, 이 법정에서 원고가 수업시간에 자신의 엉덩이를 토닥거린 것은 아니라는 취지로 진술하였다. 따라서 제1-6 징계사유는 존재하지 않는다.

2) The existence of some grounds for disciplinary action

A) In full view of the evidence No. 2-5, evidence No. 4, evidence No. 5-2, evidence No. 17-7, evidence No. 22-1, evidence No. 10-2, and evidence No. 10-3, and the overall purport of Non-Party No. 1’s testimony and pleading, the Plaintiff may fully recognize the facts that the Plaintiff committed the acts that were the basis for the disciplinary reasons No. 1-2, No. 1-3, and No. 1-4 with respect to the Plaintiff’s testimony and pleading against Non-Party 1.

B) Whether it constitutes sexual harassment

(1) Article 2 Subparag. 3 (d) of the National Human Rights Commission of Korea Act provides that “a person engaged in a public agency (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 Higher Education Act, and public service-related organizations under Article 3-2 (1) of the Public Service Ethics Act) in relation to his/her duties, employment, or other relations refers to causing sexual humiliation or aversion due to sexual words and actions, etc., or giving disadvantages in employment on the ground that he/she does not comply with sexual words and actions or other demands, etc.” Although such sexual harassment does not necessarily require sexual motive or intent to constitute a crime, it shall be objectively acknowledged that the other party has sexual humiliation or aversion with the other party, such as the relationship, place and situation of the act, the other party’s explicit or presumed response to the act, the content and degree of the act, whether the act is one time or for a short period, or continuous, etc., by taking account of specific circumstances, such as whether the other party’s act would objectively have sexual humiliation or aversion (see 2014).

(2) As seen earlier, the Plaintiff directed the victim Nonparty 1 during the class, and made the Nonparty 1 a letter of recommendation in the laboratory, such as: (a) “I would make the victim’s kis kis kis kis kis kis kis kis kis kis kis kis kis kis kis kis kis kis kis kis kis kis kis kis kis kis kis kis kis kis kis kis kis kis kis kis kis kis kis?” and “Is ams kis kis kis kis kis kis kis kis kis kis kis kis

C) Therefore, the Plaintiff’s act of sexual harassment against Nonparty 1 constitutes “where he/she has committed an act that damages his/her dignity as a teacher regardless of whether he/she is inside or outside of his/her duties,” as prescribed by Article 61(1)3 of the Private School Act. The grounds for disciplinary punishment No. 1-2, grounds for disciplinary punishment No. 1-3, and grounds for disciplinary punishment No. 1-4 are recognized. The Plaintiff

B. Whether there exists grounds for disciplinary action against the victim non-party 3

1) According to the testimony of the witness Nonparty 3, it is recognized that the Plaintiff was running the course of Nonparty 3’s grandchildren who sit or mas together with Nonparty 3’s chairs during class hours, the Plaintiff was doing so subsequent to the Plaintiff when Nonparty 3 was going on a path, the Plaintiff was satisfing the back of Nonparty 3’s chest, and the Plaintiff told Nonparty 3 that “the Plaintiff introduced satisf........” However, Nonparty 3 prepared the written confirmation from March 5, 2015 to the investigation stage of the relevant criminal case (see subparagraphs 3-2, 4, and 17-1, and 17-3). Accordingly, it is difficult to view the Plaintiff’s act as sexual harassment as seen earlier.

2) In addition, in light of the fact that Nonparty 3’s written confirmation of Nonparty 3 on March 5, 2015 and the prosecutorial investigation stage of the relevant criminal case (see evidence 3-2, 4, and evidence 17-1 of the evidence No. 3-2, 17-1 of the relevant criminal case) reversed the statement in this court, etc., the Plaintiff seems to correspond to the fact that the Plaintiff committed an act other than the acts recognized in the above-mentioned No. 5-5 of the Disciplinary Reason No. 3 as to Nonparty 3, and there is no other evidence to acknowledge it.

3) As such, there are no certain acts among the grounds for disciplinary action set forth in Articles 2-1, 2, and 3, and the remaining acts do not constitute sexual harassment. Therefore, the grounds for disciplinary action set forth in Articles 2-1, 2, 2, and 3 are not recognized. The Plaintiff’s allegation

C. Whether there exists grounds for disciplinary action against the victim non-party 2

In full view of the evidence No. 4, evidence No. 5-3, evidence No. 22-2, evidence No. 22-2, and evidence No. 3, evidence No. 10-2, and part of evidence No. 10-3, evidence No. 2, and evidence No. 2 and No. 3, evidence No. 2, and the whole purport of Nonparty 2’s written testimony and pleading by the witness, the Plaintiff may sufficiently recognize the facts that the Plaintiff committed an act that constitutes the grounds for disciplinary reasons No. 3-1 through No. 5 against the victim Nonparty 2. The Plaintiff’s act objectively constitutes an act that may cause sexual humiliation or aversion if the general and average person who is in the same position as the victim objectively is sexually in the same position as the victim. Accordingly, the Plaintiff’s act falling under sexual harassment against the victim No. 2 falls under “when he injured his dignity as a teacher regardless of his duties.” The Plaintiff’s grounds for disciplinary reasons are acknowledged. This part of the Plaintiff’s allegation is without merit.

(d) Appropriateness of a disciplinary decision.

1) In principle, when a disciplinary measure is taken against a private school teacher, the person having authority to take the disciplinary measure is at the discretion of the person having authority to take the disciplinary measure, so that the disciplinary measure is unlawful, the disciplinary measure is limited to a case where the person having authority to take the disciplinary measure is deemed to abuse the person having authority to take the disciplinary measure, as it considerably lacks validity in light of social norms, and the disciplinary measure is deemed to be a disposition which considerably lacks validity in light of the characteristics of duties, the contents and nature of the facts of the disciplinary measure, and the purpose of taking the grounds for the disciplinary measure, and other relevant circumstances, which are to be taken by the disciplinary measure, and which are clearly unfair objectively (see Supreme Court Decision 2007Du2097, Feb. 1, 2008, etc.). In addition, even if some of the grounds for disciplinary measures are not recognized, if it is sufficient to recognize the validity of the relevant disciplinary measure, the disciplinary measure is not unlawful (see Supreme Court Decision 200Du6494, Sep. 24, 2002).

2) Considering the aforementioned factual basis and the purport of the entire arguments as seen earlier, it is sufficient to maintain the instant dismissal disposition and to recognize the validity of the instant decision to dismiss the Plaintiff’s appeal even with the grounds for disciplinary grounds set forth in Articles 1-2, 3, and 4 and 3-1 through 5, and there is no reason to deem that the instant decision was remarkably unfair under the social norms, as it did not correct the Intervenor’s deviation from and abuse of the disciplinary discretion. The Plaintiff’s assertion on deviation from and abuse of the disciplinary discretion is without merit.

A) The Plaintiff is a teacher of a private school who is treated equivalent to that of a teacher of a national or public school in a certain part, and thus is in the position of university professor, the Plaintiff is obliged to maintain a higher level of dignity than that of the private company.

B) The Plaintiff, taking advantage of his superior position, repeatedly and continuously committed sexual harassment against female students in the department to which it is difficult to resist themselves, and thereby, the victims feel a considerable sense of sexual humiliation and mental suffering. The Plaintiff’s act infringed on the students’ legitimate learning right and significantly disturbed the atmosphere of Myeonology and sound school atmosphere. As such, the Plaintiff’s act of sexual harassment may be deemed to have been intentional in light of the degree of misconduct and its content and circumstances.

C) However, according to the criteria for disciplinary action under Article 2 of the Rules on Disciplinary Action, etc. of the Public Educational Officials and the attached Table, if the Plaintiff’s act was sexual harassment and the Plaintiff’s act were to be disciplinary grounds, it is possible to remove or remove the Plaintiff from office.

D) The Plaintiff did not go against the victims of sexual harassment. Rather, upon the commencement of the disciplinary procedure, the Plaintiff respondeded to the victims in order to reduce their misconduct, and during this process, the Plaintiff did not cause secondary damage to the victims.

E) If the Plaintiff continues to work at the pertinent university, it cannot be ruled out that there is a possibility that the university students would resume sexual harassment. Therefore, there is a need to block it in advance.

E. Sub-decision

The decision of this case that held that the dismissal disposition of this case is legitimate is legitimate in conclusion.

3. Conclusion

The plaintiff's claim of this case is dismissed without merit, and the costs of lawsuit are assessed against the plaintiff, including the costs incurred by participation in the case. It is so decided as per Disposition.

Judges and decorations (Presiding Judge) and Lee Jin-gu decorations