[1] Whether a decision of the National Human Rights Commission on sexual harassment and a recommendation for corrective measures under the former Prohibition of and Remedies for Gender Discrimination Act constitute an administrative disposition subject to administrative litigation (affirmative)

[2] The scope of "employees of public institutions" under Article 2 subparagraph 2 and Article 7 of the former Prohibition of and Remedies for Gender Discrimination Act

[3] The case holding that, where the National Health Insurance Corporation entered into a contract for the basic course of civil petition service with the employees to be provided by itself and provided entrusted education on eight occasions each time between two months, the instructor who provided entrusted education falls under the "employee of a public institution" under the former Prohibition of and Remedy for Gender Discrimination Act

[1] According to Article 28 of the former Act on Prohibition of and Remedies for Gender Discrimination (amended by Act No. 6915 of May 29, 2003), the decision of the National Human Rights Commission on Human Rights and recommendations for corrective measures accordingly are made in an indivisible entirety, and the decision of the National Human Rights Commission on Human Rights and recommendations for corrective measures are not affected by the personality rights of the persons determined as sexual harassment offenders, but at the same time imposing certain legal obligations on the heads of public institutions or users, so the decision of the National Human Rights Commission on Human Rights and recommendations for corrective measures shall not be deemed as administrative disposition subject to administrative litigation.

[2] The purpose of the former Act on Prohibition of and Remedies for Gender Discrimination (amended by Act No. 6915 of May 29, 2003) is to realize gender equality in all areas of society by prohibiting gender discrimination in employment, education, provision and use of goods, facilities, services, etc., and remedying the victims' rights and interests arising therefrom in accordance with the principle of gender equality in accordance with the principle of the Constitution, and in light of the social justification, necessity, and legitimacy of the purpose of the above Act to be realized in a broad range of areas, the employees of public institutions under Articles 2 subparagraph 2 and 7 of the same Act include not only those officers and employees of public institutions, but also those who have established a certain relationship with public institutions for a considerable period of time.

[3] The case holding that, where the National Health Insurance Corporation entered into a contract for the basic course of civil petition service with employees to be provided by itself and provided entrusted education eight times more than two months, an instructor who provided entrusted education constitutes "employee of a public institution" under the former Prohibition of and Remedy for Gender Discrimination Act (amended by Act No. 6915 of May 29, 2003) as a person who has established a certain relationship with a public institution and performs the duties of a public institution for a considerable period of time

[1] Article 28 of the former Prohibition of and Remedies for Gender Discrimination Act (amended by Act No. 6915 of May 29, 2003), Article 2 of the Administrative Litigation Act / [2] Articles 2 subparagraph 2 and 7 of the former Prohibition of and Remedies for Gender Discrimination Act (amended by Act No. 6915 of May 29, 2003) / [3] Articles 2 subparagraph 2 and 7 of the former Prohibition of and Remedies for Gender Discrimination Act (amended by Act No. 6915 of May 29, 2003)

[Judgment of the court below]

National Human Rights Commission (Defendant before filing a correction: Women's Women's Women's Discrimination Improvement Commission) (Attorney Lee Dong-young, Counsel for defendant-appellant)

Seoul High Court Decision 2003Nu15890 delivered on December 10, 2004

The judgment below is reversed, and the case is remanded to Seoul High Court.

1. Article 28(1) of the former Prohibition of and Remedies for Gender Discrimination Act (amended by Act No. 6915, May 29, 2003; hereinafter referred to as the “Act”) provides for the grounds for determination of sexual harassment and recommendation of corrective measures by stipulating that if there are reasonable grounds to recognize that a case falls under the gender discrimination (sexual harassment constitutes gender discrimination. Article 7(3) of the Act, it shall be determined that it is gender discrimination and that the head of the relevant public institution or employer thereof shall make recommendations necessary for correction. Article 28(2) of the same Act provides for the suspension of sexual harassment and the measures for correction pursuant to paragraph (1) of the same Article, restoration to original state, compensation for damages, and other necessary relief, public announcement through daily newspapers’ advertisement, and Article 30 of the Act provides that the applicant and the head of the relevant public institution or the employer of the public institution shall be notified of the determination of sexual harassment as corrective measures or the employer’s personal right, despite the fact that there is no possibility of infringement of such recommendation or recommendation of the public institution’s.

The court below's finding that the defendant's decision of sexual harassment is an administrative disposition subject to administrative litigation is just in accordance with such legal principles, and there is no error of law such as misunderstanding of legal principles as to administrative disposition

2. Based on the evidence of employment, the lower court acknowledged facts as indicated in its reasoning, and determined that the Plaintiff’s status was not subject to the Service Regulations or personnel regulations, etc., and that the Plaintiff’s act of education was unlawful by taking into account the following circumstances: (a) under the title of “customer psychological analysis and grievance settlement techniques” which the Plaintiff voluntarily determined in response to the request of the Plaintiff; (b) the education was conducted mainly on how to deal with customer complaints; (c) the education period, number and time of the education period, eight or six hours at a short period of eight (8) months; (d) the Plaintiff’s act of education was not subject to the Service’s duty regulations or personnel regulations, etc.; (e) although the Plaintiff’s status was partially delegated with the reputation from the Service’s prior approval, the Plaintiff’s act of education was not subject to the Service’s direction and supervision; (e) the Plaintiff’s act of education was not subject to the Plaintiff’s act of sexual harassment during the given period of education; and (e) the Plaintiff’s act of education was not subject to the Plaintiff’s instruction and supervision.

However, we cannot accept the above judgment of the court below.

The purpose of this Act is to realize gender equality in all areas of society by prohibiting gender discrimination in employment, education, provision and use of goods, facilities, services, etc. in accordance with the principle of gender equality in the Constitution, and by remedying victims' rights and interests (Article 1 of the Act), and in light of the social justification, necessity and legitimacy of realizing the purpose of the above Act in a broad range of areas, "persons engaged in public institutions" in Articles 2 subparagraph 2 and 7 of the Act include not only officers and employees of public institutions but also those who have a certain relationship with public institutions for a considerable period of time and perform duties of public institutions.

According to the records, the Corporation entrusted education to its employees by specifying the subject, time, and instructors in the contract of the basic education process. If the reputation needs to be changed, it shall obtain prior approval from the Corporation (157 pages). Pursuant to this agreement, the reputation shall be commissioned as instructors of the subject, 'customer psychological analysis and complaint processing techniques' (142 pages). The plaintiff shall be deemed as having received prior approval from the Corporation, and it shall not be less than 2 months from June 27, 2001 to August 25, 201, at the request of the Corporation, provide education for its employees for 4 to 6 hours on behalf of the Corporation. The plaintiff shall be deemed as having received prior approval from the Corporation. The plaintiff shall be deemed as having been in charge of education for its employees for the purpose of promoting the reputation and health of the Corporation. The plaintiff shall be deemed as having been in charge of education for its employees at least 10 hours on behalf of the Corporation, but shall be deemed as having received prior approval from the Corporation for the purpose of education and supervision of the Corporation.

Nevertheless, the court below's determination that the plaintiff is not an employee of a public institution under Article 2 subparagraph 2 or Article 7 of the Act on the grounds stated in its reasoning is erroneous in the misapprehension of legal principles as to the employees of a public institution, which affected the conclusion of the judgment. Thus, the ground of appeal No. 2 pointing this out is with merit

3. Therefore, the judgment of the court below shall be reversed, and the case shall be remanded to the court below. It is so decided as per Disposition by applying the provisions of Articles 14(6) and 13(1) proviso of the Administrative Litigation Act to correct the defendant as the National Human Rights Commission of Korea by applying each of the provisions of Article 14(6) and the proviso of Article 13(1) of the Administrative Litigation Act, inasmuch as the work to improve gender discrimination of the Gender Equality and Women Commission is succeeded to the National Human Rights Commission pursuant to Article 2 of the Addenda to the Prohibition of Gender Discrimination and Remedies Act enacted by Act No. 7422 on March

Justices Lee Yong-woo (Presiding Justice)