(영문) 서울행정법원 2019.11.1. 선고 2019구합59400 판결

A. On January 12, 1981, the Plaintiff was first appointed as a local administrative secretary, and served as a public official in general service belonging to the Ministry of Education who promoted to a deputy office on July 1, 2016, and as a director of B University Student Admission Scholarship from January 1, 2018.

B. On June 2018, the Defendant requested the Central Disciplinary Committee to make a minor disciplinary decision against the Plaintiff for the following reasons, and on August 24, 2018, the Central Disciplinary Committee made a decision of reprimand against the Plaintiff.

① At around 20:00 on March 22, 2018, the Plaintiff: (a) divided the instant case into the table table in the C cafeteria located in the Busan Young-gu, Busan, and contacted the victim’s left upper part of the floor for several seconds; (b) divided the victim’s sponse and knee on two occasions in the victim’s hand, which was the victim’s sponse and knee in the two sides; and (c) made the victim feel a sense of sexual shame due to physical contact not wanting to the victim A (hereinafter referred to as “the first disciplinary ground”); (b) the Plaintiff’s act of causing the victims of the instant case to violate Article 7(1) of the State Public Officials Act (hereinafter referred to as “the Plaintiff’s act of causing the victims of the instant case”) on April 13:00, 2018, when the investigation on the case was conducted after reporting sexual harassment on March 26, 2018.

C. On September 17, 2018, the Defendant issued a reprimand under Article 78(1) of the State Public Officials Act (hereinafter “instant disposition”) against the Plaintiff on September 17, 2018 upon notification of the result of a disciplinary decision by the Central Disciplinary Committee.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence No. 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Article 5(1) of the Regulations on the Prevention and Treatment of Sexual Harassment and Sexual Violence at B University; Articles 11(2) and 12(3) of the Decree on the Punishment of Public Officials provides that appropriate measures shall be taken in the event of sexual harassment, and sufficient opportunity to make statements to the suspect, such as disciplinary action, shall be given, and the Disciplinary Committee shall be allowed to conduct fact-finding investigations by its employees. However, although the Plaintiff denied the grounds for disciplinary action, the Defendant determined that there was grounds for disciplinary action based only on the statement of the victims, without entirely conducting additional investigations, such as the investigation of other types of participants who are likely to have observed the case, and securing evidence, even if the Plaintiff denied the grounds for disciplinary action,

2) There is no ground for disciplinary action Nos. 1 and 2 of the instant disposition as follows.

A) The Plaintiff did not intentionally have any physical contact with the victims. Even if the Plaintiff’s grandchildren were in contact with the victims’ upper part or kneee while communicating in a narrow meeting place, it cannot be deemed as sexual harassment as “sexual speech or behavior that causes sexual humiliation or aversion in relation to the work, etc. by using a position” under Article 2 subparag. 3 (d) of the National Human Rights Commission Act.

B) The Plaintiff contacted the employees who participated in the meeting to verify who was the reporter and who was aware of the details of the report. During that process, the Plaintiff also called the victims. The Plaintiff did not threaten or multilaterally threaten the victims to confirm whether to report or not.

Therefore, only the fact that the plaintiff sent a call with the victims cannot be deemed to have inflicted secondary damage on the victims.

B. Relevant provisions

It is as shown in the attached Form.

C. Determination

1) Whether procedural defects in the instant disposition are procedural defects

Comprehensively taking account of the following circumstances acknowledged by the aforementioned evidence, Eul evidence Nos. 2 through 6 (including paper numbers) and the purport of the entire pleadings, it cannot be deemed that there was procedural defect, such as failure to conduct an investigation necessary for the disposition of the instant case, even if the Defendant did not conduct an additional investigation, such as an investigation on the participants attending another meeting.

① Article 5(1) of the Regulations on the Prevention and Treatment of Sexual Harassment and Sexual Violence at B University provides that “The president shall take necessary measures in cases where sexual harassment and sexual assault have occurred.” Therefore, the president of B University cannot be deemed to have derived the need to conduct an additional investigation in addition to the measures taken by the president of B University with respect to the Plaintiff and victims, such as investigation, deliberation, and request for disciplinary action.

Rather, Article 4(3) of the above provision provides that "a person who handles sexual harassment or sexual assault case shall give priority to the protection of the victim and his/her agent, and shall not disclose or divulge any material that might be disclosed to the victim's identity without the consent of the victim or his/her agent." Thus, the subject to attending the meeting of this case is limited to the student welfare and admission scholarship belonging to the student wife and two departments, and the number of participants is about 20 persons. In light of the above, even if there are concerns about the victim's exposure to identity and the possibility of secondary damage, it cannot be deemed that the investigation was not conducted in the course of the investigation, or that the discretionary authority was abused.

③ Article 11(2) of the Decree on Disciplinary Measures against Public Officials provides that “The Disciplinary Committee shall provide a suspect with sufficient opportunity to make a statement, such as disciplinary action, and the suspect, including disciplinary action, may state or submit evidence in writing or orally favorable to him/her.” After reporting sexual harassment, the Plaintiff submitted or made a written statement at three times in the procedure of investigation into gender equality counseling rooms at B universities or the sexual harassment and sexual violence grievance deliberation committee, deliberation and review (see, e.g., April 2, 2018; April 18, 2018; April 24, 2018). In addition, the Plaintiff appears to have been present and made a statement directly at the Central Disciplinary Committee held on August 24, 2018, and the Plaintiff appears to have been provided with sufficient statements and opportunity to submit evidence, and thus, the Plaintiff cannot be deemed to have been guaranteed the right to make a statement or defense stipulated in the Decree on Disciplinary Measures against Public Officials.

④ Article 12(3) of the Decree on Disciplinary Measures against Public Officials provides that “The Committee may, if deemed necessary, have an employee under its control conduct an investigation into facts.” In this case, there is a high possibility that multiple victims have observed and made a statement in the situation of each other, and that the victims’ statements were considerably specific and consistent, and thus, credibility of the victims’ statements can be acknowledged. In addition, the fact that additional investigation, other than the victims’ statements, may be conducted in addition to the victims’ statements, should be taken due to the investigation into other employees present at the relevant meeting (the Plaintiff’s assertion that such investigation should take place, such as the confirmation of CCTV, but there is no evidence to prove that there was a minimum explanation on the necessity of physical investigation, such as the installation or photographing of CCTV at the relevant meeting place. However, if other employees did not pay special attention at the meeting place, it is difficult to deem that additional investigation was necessary for the victims’ statements and other employees to be conducted in a specific and meaningful manner beyond the victims’ statements due to the nature of the case.

2) Whether the instant disposition constitutes grounds for disciplinary action

A) Whether a ground for disciplinary action 1 is recognized

(1) The term “sexual harassment” means: (a) the act of having the other party feel sexual humiliation or aversion by utilizing his/her position or sexual speech or behavior, sexual demand, etc. in relation to his/her duties, employment and other relations; (b) the other party puts the other party at a disadvantage or expressing his/her intent to grant profits on the condition that he/she does not comply with the sexual speech or behavior, demand, etc.; (c) the act of having the other party feel sexual humiliation or aversion in relation to his/her duties, employment and other relations (see, e.g., Article 2 Subparag. 3 (d) of the National Human Rights Commission of Korea Act). The term “sexual speech or behavior” refers to an act of physical relationship between men and women, or physical, verbal, and visual activity related to a male or female’s physical feature, which objectively means an act of causing the general and average person at the same place as the other party to feel sexual humiliation or aversion.

Although sexual harassment does not necessarily require a sexual motive or intent to be established, in light of the specific circumstances, such as the relationship between the parties, place and situation where the act was committed, the other party’s explicit or presumed response to the act, the content and degree of the act, whether the act was one-time or short term or continued to exist, etc., the act of allowing the general and average person in the same position as the other party to feel sexual humiliation or aversion, and thereby, it should be objectively recognized that the other party to the act has caused sexual humiliation or aversion (see, e.g., Supreme Court Decision 2017Du74702, Apr. 12, 2018).

(2) In full view of the following circumstances acknowledged in light of the aforementioned legal principles, it is recognized that the Plaintiff committed sexual harassment under Article 2 subparag. 3 (d) of the National Human Rights Commission Act against the victims.

① 피해자 B는 2018. 4. 2. B대학교 성평등상담실에서 신고인 자격으로 진술하였다. 그 주요 내용은 '원고가 제가 있는 테이블로 와서 술을 권하며 이야기를 나누던 중 갑자기 이야기를 나누던 여자직원(피해자 A)의 팔을 지그시 잡는 모습을 보고 순간 깜짝 놀랐다. 제게 일어난 일은 아니지만 그 모습이 갑작스런 신체접촉이라는 생각이 들어 찜찜한 마음이 들었다.', '그 후 원고가 저와 이야기를 나누면서 제 무릎을 지그시 잡는 모습에 이건 뭔가 잘못되었다는 느낌이 강하게 들면서 불쾌감이 들었다. 이후 또 다시 제 무릎을 지그시 잡기에 더 이상 그 자리에 있지 못하고 밖으로 나갔다. 나가있는 동안 이 불쾌하고 찜찜한 감정을 어떻게 해야 할까? 한 번 더 그렇게 하시면 그러시지 말라고 말해야 할까? 과연 내가 그런 말을 면전에 대고 했을 때 분위기가 이상하게 망가지지 않을까? 등등 이런저런 고민들로 시간을 보내고 15분 정도 지나 회식자리에 돌아갔다.'라는 것이었다.

② On April 9, 2018, the victim A stated his/her name as a witness at the Gender Equality Counseling Office of B University on April 9, 2018. The main contents of the statement were as follows: (a) the Plaintiff laid down the arms immediately under his/her hands in the middle of the conversation; and (b) the short part of the body was not the hand length; (c) there was any inconvenience while there was any inconvenience. During the conversation with female employees (victim B), the Plaintiff was using the method in which the Plaintiff paid knee on his/her own knes up to 2 to 3 occasions. At the same time, the Plaintiff did not said knees between the two knees? However, the Plaintiff was able to stop the expression in any way? In the end, the Plaintiff did not speak. The Plaintiff’s telephone that was impreded.

③ The above victims’ statements are considerably detailed with respect to the Plaintiff’s act, the situation before and after the victims, and the response of the victims at the time. The victims have observed the Plaintiff’s act against different victims, and have made their statements with each other consistent with each other. In particular, the victim’s statement was not made with the initial victim B, but was made with the Plaintiff’s phone call on April 6, 2018, and was made with the witness qualification, and thus, it is highly likely to acknowledge credibility in the statement in light of the background of the statement. The victims mentioned the completion of sexual violence prevention education to prevent recurrence as measures against the Plaintiff at the time of the above statement, and did not demand disciplinary measures against the Plaintiff. There was no motive or reason for the victims to make a false statement with respect to the Plaintiff, a superior at work.

(4) The Plaintiff asserts that there was no intentional physical contact with the victims as of April 18, 2018. However, in the written statement prepared on April 24, 2018 and April 24, 2018, the Plaintiff received a large amount of alcohol from many people. The Plaintiff completed a meeting at the first place and was well aware of how they had been doing so. At the time, the Plaintiff stated that the Plaintiff was in an abnormal state of drinking. The Plaintiff stated that he was unable to accurately memory the victims of his behavior. Moreover, the Plaintiff’s sexual harassment is not necessarily required to have sexual motive or intent.

⑤ Even if the Plaintiff did not work for the same department as the victims, it is recognized that the Plaintiff’s act is an act that makes the general and average person in the same department as the victims feel sexual humiliation or repuging a sense of aversion, in full view of the following: (a) although the Plaintiff did not work for the same department as the victims, it is difficult to see that the Plaintiff’s act is an act that makes it possible for them feel sexual humiliation or repuging a sense of aversion in light of the fact that the department to which the student wife belongs, the employees are in the job-type position; (b) the Plaintiff physically contacted multiple victims; (c) the continuity and repetition of the relevant act; and (d) the situation where conversations were divided not during the time.

B) Whether the grounds for the second disciplinary action are recognized

In full view of the following circumstances recognized by the overall purport of evidence and arguments mentioned above, it is determined that the Plaintiff’s phone call to the victims constitutes a disciplinary cause as an act of causing secondary damage in violation of a written oath.

① On April 2, 2018, the Plaintiff, at the time of investigation into the gender equality counseling office of B University, prepared a pledge on the content of the case and personal information of the reporter, confidentiality of personal information, prohibition of personal contact with the reporter and witness during the investigation period, etc. However, on April 6, 2018, the Plaintiff violated the said pledge by making phone calls to the victims for reference in the case.

② There is room to view that the Plaintiff did not accurately specify who was the reporter at the time of the call to the victims or know about the reported details. However, the Plaintiff’s phone call to the victims, a female employee, who was highly likely to be the reporter, i.e., the Plaintiff, a female employee, who was divided into the Plaintiff in the instant conference form, attempted private contact with the reporter.

③ According to the statements of the victims, the plaintiff made a statement to the effect that "in the telephone call, there is a harsh time when she was a reply." If there was a harsh part, it is reasonable to say that it is now in the present situation. Therefore, it seems that there is a aspect of examining the counter-party's response to this in mind, not just because the attending party could be the reporter of the sexual harassment case, in mind that he was not a member who tried to verify the facts against the attending party, but also the other party may be the reporter of the sexual harassment case.

D. Sub-committee

Therefore, the instant disposition is lawful in a lawful manner and all grounds for disciplinary action exist, and procedural and substantive defects are not recognized. The Plaintiff’s assertion is without merit.

Conclusion

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