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(영문) 서울고등법원 2005. 9. 16. 선고 2004누10991 판결
[남녀차별개선위원회결정내지재결취소][미간행]
Plaintiff and appellant

Plaintiff 1 and one other (Attorneys Soh So-young et al., Counsel for the plaintiff-appellant)

Defendant, Appellant

National Human Rights Commission (Attorney Kim Jong-sung, Counsel for defendant-appellee)

Intervenor joining the Defendant

Intervenor (Law Firm Shinh, Attorneys Choi Han-soo et al., Counsel for the intervenor-appellant-appellee)

Conclusion of Pleadings

July 29, 2005

The first instance judgment

Seoul Administrative Court Decision 2002Guhap36065 decided May 20, 2004

Text

1. The plaintiffs' appeal is dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

Purport of claim and appeal

The primary purport of the claim is that the Defendant made against the Plaintiffs on July 29, 2002, and that the Plaintiff 1 made on July 1, 2001 against the Defendant’s Intervenor (hereinafter “ Intervenor”) shall be determined by sexual harassment.

Preliminary claim: The defendant's decision that "All plaintiffs' objections are dismissed" against the plaintiffs on October 21, 2002 is revoked.

(2) The Defendant’s act of improving discrimination against female women was revised as the National Human Rights Commission of Korea as it succeeded to the National Human Rights Commission of Korea under Article 2 of the Addenda of the Act on the Prohibition of and Remedies for Gender Discrimination, which was enforced on June 23, 2005, prior to the closing of argument in the court of first instance.

Reasons

1. Quotation of the reasoning of the first instance judgment;

The reasoning of this court's reasoning is as follows: (a) add "the evidence No. 21-1 or No. 27 of the evidence No. 9-1 of the judgment of the court of first instance" to "the defendant"; (b) assign "the defendant" of the judgment of the court of first instance to "the defendant before correction"; and (c) add the judgment below on the plaintiffs' claims, it is identical to the reasoning of the judgment of the court of first instance; (d) refer to Article 8 of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Additional determination on the plaintiffs' assertion

The plaintiffs did not specify the plaintiff 1's act on July 29, 2002 in the order of the defendant's decision on July 2002 before the correction, but merely stated that "the plaintiff 1's act committed against the plaintiff 1 (the intervenor) is sexual harassment," and therefore, it cannot be seen that the issue of the plaintiff 1's act is about the plaintiff 1's act. The reasons for the decision merely stated that "the respondent's act of conversation among the actions asserted by the plaintiff 1 is true that the plaintiff 1's act was done on the plaintiff 1's chest," and it cannot be seen that there was a different act as to whether the plaintiff 1 caused the plaintiff 1's act intentionally or intentionally committed another act as to the plaintiff 1's chest. Thus, the above decision is erroneous in the misapprehension of the grounds that the sexual harassment itself is not specified.

However, Article 7(3) of the Act on the Prohibition of Gender Discrimination does not provide for a special provision on the order of and method for stating the reasons for the decision of sexual harassment. However, Article 28(1) of the same Act provides that "where there are reasonable grounds to recognize that sexual harassment falls under the matters of gender discrimination as a result of the investigation under Article 22, the Committee shall determine whether it is gender discrimination and shall recommend the head of the relevant public agency or the user to take measures necessary for correction." Article 22(1) of the Enforcement Decree of the same Act provides that "The recommendation of corrective measures under Article 28(1) of the Act shall be made in writing specifying the contents of gender discrimination and the recommendation of corrective measures, etc." Thus, in a decision of sexual harassment, it is not necessary to clearly specify what act constitutes sexual harassment, and it is sufficient to find out which act of the respondent constitutes sexual harassment, taking into account the order and reasons for such decision, and it is sufficient that the contents of the recommendation of corrective measures against the plaintiff 1 et al., thereby determining the contents of the correction and reasons for the plaintiff 1 voluntary.

3. Conclusion

Therefore, the plaintiffs' claims in this case are all dismissed due to the lack of grounds, and the judgment of the court of first instance is just in this conclusion, and the plaintiffs' appeal is dismissed. It is so decided as per Disposition.

Judges Kim Nung-hwan (Presiding Judge)

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