(영문) 서울행정법원 2019.6.12.선고 2018구단72348 판결

A. B Foundation (hereinafter referred to as the “Foundation”) is an incorporated foundation established with the aim of promoting mutually beneficial cooperation between large enterprises and small-medium enterprises in accordance with the Act on the Promotion of Collaborative Cooperation between Large Enterprises and Small-Medium Enterprises, resolving the enhancement of competitiveness and polarization between large enterprises and small-medium enterprises, and promoting mutually beneficial cooperation with private enterprises and farmers and fishermen in accordance with special Acts on the support of farmers, fishermen, etc. following the conclusion of a free trade agreement

B. On April 24, 2018, C and D (hereinafter referred to as “reported persons”) reported sexual harassment to a person in charge of sexual harassment counseling in the Foundation, who is the secretary general of the Foundation, that the Plaintiff was sexual harassment against his employees, and the Foundation’s own investigation and external investigation by E Support Center. Meanwhile, upon receiving a report on the existence of such sexual harassment, the Defendant’s labor inspector visited the Foundation on July 9, 2018 and conducted an inspection on sexual harassment, and on July 12, 2018, the Defendant requested the Foundation to review the correction order on the ground that the Defendant did not request the correction order on the grounds that the first order for correction was not made (hereinafter referred to as “the first order for correction”).

D. Accordingly, on September 7, 2018, the Defendant submitted the research data of the Foundation itself and E Support Center, and conducted an additional investigation, such as an interview and fact-finding survey, against the Plaintiff, reporters, and employees of the Foundation. On the grounds that sexual harassment in the Plaintiff’s workplace was confirmed as a result of the said additional investigation, the Defendant issued a final corrective order to the effect that disciplinary action against the Plaintiff and necessary measures should be taken against the Plaintiff, such as the details of the first corrective order, and that the result should be reported by September 17, 2018 (hereinafter referred to as “instant corrective order”). Thereafter, the Plaintiff was referred to the disciplinary procedure of the Foundation and was dismissed by the Secretary-General.

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2. The plaintiff's assertion

It is difficult to evaluate the reported content as sexual harassment in light of all circumstances at the time. Nevertheless, the Defendant accepted the reporter’s assertion without sufficient investigation and issued the instant corrective order. Therefore, the instant corrective order is an illegal and unfair disposition that misleads the fact or misleads the legal principles, and thus ought to be revoked.

3. Determination on this safety defense

A. The defendant's assertion

The instant corrective order is a non-power factual act and cannot be deemed a disposition subject to appeal litigation. The other party to the instant corrective order is a foundation, and the Plaintiff is not a party to the instant corrective order, and there is no standing to sue to seek revocation of the instant corrective order. Since the Plaintiff was dismissed from a foundation by disciplinary action following the instant corrective order, the corrective action was taken in accordance with the instant corrective order, there is no benefit in the Plaintiff’s lawsuit seeking revocation of the instant corrective order.

Therefore, the instant lawsuit should be dismissed as it is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Whether the instant corrective order constitutes an administrative disposition

A) The main text of Article 40(1) of the Labor Inspector Act, the legal nature of the instant order for correction, which is the provision on the basis of the instant order for correction, provides that the supervising officer, when the fact of violation is confirmed as a result of the investigation of the reported case, shall deal with it in accordance with the criteria for measures against violations in attached Table 3, and the [Attachment Table 3] provides that, when the business owner violates Article 14(1)1 of the former Equal Employment Opportunity Act (wholly amended by Act No. 15109, Nov. 28, 2017), the employer shall issue an order for correction within a fixed period not exceeding 25 days and terminate the internal investigation upon completion of the correction within the prescribed period, and if the correction is not made within the prescribed period, the supervising officer shall report whether the person was the offender

However, even where the Labor Standards Act and the Equal Employment Opportunity Act, which are superior Acts and subordinate statutes, are applicable laws and regulations, there is no provision that compels a labor inspector or the head of a local employment and labor office to take corrective measures against a business owner who violates Article 14(5) of the Equal Employment Opportunity Act, or imposes sanctions against a business owner if a business owner fails to comply with a corrective order (the imposition of a fine for negligence under Article 39(2)1-6 of the Equal Employment Opportunity Act is a sanction against the violation of Article 14(5) of the Equal Employment Opportunity Act and is not a sanction against the non-compliance with the corrective order in this case). Therefore, the instant corrective order made pursuant to the main sentence of Article 40(1) and [Attachment 3] of the Labor Inspector Act does not have any meaning to provide the business owner with an opportunity to correct the violation by himself

Thus, the instant corrective order is a non-power factual act that leads an administrative agency to prevent or not to conduct certain acts by means of guidance, recommendation, etc. to a private person, etc. in order to realize a certain administrative purpose, and does not in itself aim at generating a certain legal effect, but constitutes an administrative guidance (Article 2 subparagraph 3 of the Administrative Procedures Act) with the aim of generating a de facto effect through voluntary cooperation of the other party.

B) Disposition of the instant corrective order

The term "administrative disposition", which is the object of an appeal litigation, means an act of an administrative agency under public law, which causes direct change in the legal status of the other party and other persons concerned, such as ordering the establishment of rights or the burden of obligations under Acts and subordinate statutes with respect to a specific matter, and giving rise to other legal effects. An act that does not directly change the legal status of the other party and other persons concerned, such as actions, intermediation, solicitation, de facto notification, etc. inside the administrative authority, is not subject to an appeal litigation (see, e.g., Supreme Court Decision 78Nu379, Oct.

As seen earlier, the instant corrective order does not by itself aim at a certain legal effect, and is merely an administrative guidance, which is a non-power factual act with the aim of generating de facto effect through voluntary cooperation of the other party. Article 14(5) of the Equal Employment Opportunity Act provides that an employer shall take necessary measures, such as disciplinary action against a person who has committed sexual harassment on the job, change of the place of work, etc. When the occurrence of sexual harassment on the job is confirmed, the employer shall take necessary measures, without delay, against the person who has committed sexual harassment on the job. Article 39(2)1 of the Equal Employment Opportunity Act provides that where an employer fails to take necessary measures, such as disciplinary action and change of the place of work, without delay, even though the occurrence of sexual harassment on the job was confirmed by the employer, the Minister of Employment and Labor shall impose an administrative fine not exceeding five million won on the perpetrator. Accordingly, where the occurrence of sexual harassment on the job is confirmed, imposing an obligation to take necessary measures, such as disciplinary action against the Plaintiff or change of the place of work, and if the above obligation is not imposed upon the administrative fine.

Supreme Court Decision 2005Du487 Decided July 8, 2005 cited by the plaintiff decided that the recommendation of corrective measures by the National Human Rights Commission of Korea constitutes an administrative disposition subject to administrative litigation, but this is obvious different from this case in that the former Act on the Prohibition of and Remedies for Gender Discrimination (amended by Act No. 7422 of March 24, 2005) provides the grounds for the recommendation of corrective measures in Article 28, and Article 31 imposes an obligation on the head or user of the public institution that received the recommendation of corrective measures, which is the basis for the recommendation of corrective measures by the National Human Rights Commission of Korea.

Therefore, the instant corrective order does not constitute a disposition subject to appeal litigation.

(ii)existence of standing to sue;

Even if a third party who is not the direct counter-party to an administrative disposition is not a party, if the legal interests protected by the pertinent administrative disposition are infringed, a revocation lawsuit shall be instituted and the decision of the propriety thereof shall be made. The legal interests referred to in this context refer to individual, direct and specific interests protected by the relevant administrative disposition and relevant laws and regulations (see, e.g., Supreme Court Decision 2004Du6716, Jul. 28, 2006).

Since the direct counterpart to the instant corrective order is a foundation that is not the Plaintiff, the Plaintiff is entitled to sues to file a lawsuit seeking revocation against the instant corrective order only in cases where the Plaintiff is likely to infringe on legally protected interests due to the instant corrective order. Even if the Plaintiff becomes disadvantaged in personnel affairs due to the Plaintiff’s disciplinary action, etc. against the Foundation, this is not due to the instant corrective order, but due to a disciplinary action, etc. in accordance with the Equal Employment Opportunity Act, rather than due to the instant corrective order. It is difficult to view that the instant corrective order, which is merely an administrative guidance, directly infringes on or is likely to infringe on the Plaintiff’s personality rights or reputation rights.

Therefore, the plaintiff is not deemed to have standing to sue to seek revocation of the corrective order of this case.

(iii) the existence of interests in a lawsuit

In general, in an appeal litigation seeking the revocation of an administrative disposition, the legal interest of a lawsuit ought to exist and the state of infringement ought to continue or be able to be recovered through the revocation of the administrative disposition. In a case where the enforcement of an administrative disposition has been completed and the purpose thereof has been achieved, then the legal effect thereafter is extinguished, and thus, the benefit of a lawsuit seeking the revocation of an administrative disposition shall also be extinguished (see, e.g., Supreme Court Decision 95Nu2623, Jul. 28, 1995). Furthermore, inasmuch as a lawsuit seeking the revocation of an administrative disposition seeks to restore the state of illegality arising from the disposition to the original state and to protect and relieve the rights and interests infringed or obstructed by the disposition, even if the disposition is revoked, there is no benefit to seek the revocation of the disposition (see, e.g., Supreme Court Decisions 96Nu9768, Nov. 29, 196; 2005Du10835, Nov. 29,

As seen earlier, the Plaintiff was dismissed by the Secretary General of the Foundation after the instant corrective order, and was subject to corrective measures following the instant corrective order. Even if the instant corrective order was revoked, the Plaintiff became unable to return to the status before the instant corrective order was issued, unless the dismissal order is revoked.

Therefore, there is no interest in litigation to seek revocation of the corrective order of this case.

4. Conclusion

Thus, the lawsuit of this case is inappropriate even if it is a mother, and it is so decided as per Disposition.

Judges

Judges Lee Jae-hoon

Note tin

1) Article 14(5) of the Equal Employment Opportunity Act provides that the labor inspector’s duty provision is not reflected in the amended matters, and such provision is pre-amended.

set forth.