[1] Whether a decision made by the Committee for Correction of Discrimination under the National Human Rights Commission of Korea constitutes an administrative disposition subject to administrative litigation (negative)

[2] Whether the recommendation to receive human rights education for the respondent by the National Human Rights Commission constitutes an administrative disposition subject to administrative litigation (negative)

[3] Whether the relevant worker has standing to sue a revocation suit against the recommendation on personnel measures against the representative director of the National Human Rights Commission of Korea (affirmative)

[4] Whether a recommendation for corrective measures made by the National Human Rights Commission on behalf of the representative director of a company constitutes an administrative disposition subject to administrative litigation (affirmative)

[5] Whether all sexual harassment acts immediately constitute a discriminatory act against the right to equality as an act of gender discrimination, and the burden of proving the fact that such act is a discriminatory act by gender with no reasonable grounds (=the National Human Rights Commission of Korea)

[1] Article 44(1) of the National Human Rights Commission Act only provides for the recommendation of corrective measures and does not provide for a separate basis for the decision on the recommendation of the National Human Rights Commission. Accordingly, the decision made by the National Human Rights Commission for Correction of Discrimination under the National Human Rights Commission for Human Rights Commission is an internal formation of its intent, which is a collegiate administrative agency, and according to the result, the decision is merely an interim process to recommend the respondent and the representative director of the company, and the decision itself does not cause any change in the rights and obligations of the people, and thus, it cannot be subject to appeal litigation.

[2] According to the National Human Rights Commission Act, when the National Human Rights Commission determines that a violation of human rights or a discriminatory act has been committed as a result of the investigation of a petition, it may recommend the respondent to implement relief measures under each subparagraph of Article 42(4), to correct or improve statutes, institutions, policies, and practices (Article 44(1)). No unfavorable measure may be imposed when the respondent fails to comply with the above recommendation, and such recommendation does not restrict the respondent’s rights or impose duties on the respondent, and it does not have any effect on individual and specific regulation of the respondent’s legal interest. Thus, the National Human Rights Commission’s recommendation for human rights education for the respondent does not constitute an administrative disposition subject to administrative litigation.

[3] The recommendation on personnel measures by the National Human Rights Commission imposes a certain legal obligation on the representative director of the company, and if the representative director of the company takes the transfer measures for workers, the employee is obligated to comply with the obligation under the labor contract, and the employee concerned shall enjoy the direct and specific interests protected by the law regarding the recommendation on the representative director of the National Human Rights Commission, and therefore, he/she is entitled to standing to file

[4] According to Article 25(2), (3), and (4) of the National Human Rights Commission of Korea Act, the recommendation for correction by the National Human Rights Commission of Korea imposes certain legal obligations on an employer. Thus, the recommendation for corrective measures against the representative director of the company constitutes an administrative disposition subject to administrative litigation.

[5] Article 7 (4) of the former Act on the Prohibition of and Remedies for Gender Discrimination (amended by Act No. 7422 of Mar. 24, 2005), which provides that "sexual harassment shall be deemed to be gender discrimination," was repealed by Article 7 (1) of the Addenda to the repealed Act (amended by Act No. 7422 of Mar. 24, 2005), and Article 2 (2) of the Addenda to the repealed Act (amended by Act No. 742) does not have the above provision as to Article 7 (4). Thus, all sexual harassment acts committed before March 24, 2005 were immediately considered to be gender discrimination, but since March 25, 2005, all sexual harassment acts did not immediately constitute a discrimination of infringement on the right to equality, but can make recommendations under the National Human Rights Commission Act, and the burden of proof as to such acts shall be borne by the National Human Rights Commission of Korea.

[1] Articles 2(1)1 and 19 of the Administrative Litigation Act, Article 44(1) of the National Human Rights Commission of Korea Act / [2] Articles 2(1)1 and 19 of the Administrative Litigation Act, Article 44(1) of the National Human Rights Commission of Korea Act / [3] Article 12 of the Administrative Litigation Act / [4] Article 25(2), (3), and (4) of the National Human Rights Commission of Korea Act / [5] Article 7(4) of the former Act on Prohibition of and Remedies for Gender Discrimination (Amended by Act No. 7422, Mar. 24, 2005); Article 2 subparag. 4(d) of the National Human Rights Commission of Korea Act; Article 26 of the Administrative Litigation Act / [Liability for Certification]

Plaintiff (Attorney Kim Ho-ho, Counsel for the plaintiff-appellant)

National Human Rights Commission (Law Firm Jin-Jin Law, Attorney Lee Jong-young, Counsel for defendant-appellant)

July 5, 2007

1. Each part of the lawsuit in this case and each part of the conjunctive claim that the defendant sought revocation of the recommendation for taking human rights education against the plaintiff shall be dismissed.

2. On September 14, 2006, the Defendant’s disposition of recommending personnel measures against the representative director of Hyundai Motor Vehicle Co., Ltd. regarding the 06 Jina 266 sexual harassment case between the Plaintiff and Nonparty 1 is revoked.

3. The costs of lawsuit shall be divided into four parts, and three parts shall be borne by the plaintiff, and the remainder by the defendant respectively.

1. The primary claim: the defendant's primary claim is revoked on August 29, 2006, the recommendation of human rights education lectures and the recommendation of personnel measures against the representative director of Hyundai Motor Co., Ltd. against the plaintiff regarding sexual harassment cases between the plaintiff and the non-party 1.

2. Preliminary claim: Disposition No. 2 of this case and Disposition No. 2 of this case and Disposition No. 2 of this case against the plaintiff regarding sexual harassment case between the plaintiff and non-party No. 1 on September 14, 2006 is revoked.

1. Basic facts

A. The Plaintiff and Nonparty 1 are Hyundai Automobile Co., Ltd. (hereinafter “instant company”)’s business employees at (name omitted) branches, and both are members of the Hyundai Automobile Trade Union (hereinafter “instant Trade Union”).

B. On July 7, 2004, Nonparty 1 filed a correction request with the Gender Discrimination Improvement Committee by claiming that Nonparty 2, 3, and 43 employees of the branch were sexual harassment victims. On November 8, 2004, the said Committee dismissed Nonparty 1’s application on the ground that Nonparty 4 made the speech and behavior Nonparty 4 made to Nonparty 1 on June 17, 2004 and Nonparty 3 recommended the instant company to establish a preventive education and preventive measures against sexual harassment, while Nonparty 2 recommended Nonparty 3 to establish a sexual harassment on June 21, 2004, with respect to Nonparty 2’s words “employee” to the effect that it is sexual harassment, it is difficult to deem that it is sexual harassment to be sexual harassment. The said Committee dismissed Nonparty 2 and Nonparty 4’s other branch offices pursuant to the above decision.

C. On January 26, 2006, Nonparty 2 asserted that Nonparty 1 and Nonparty 5 entered the hotel (location and name omitted) and that Nonparty 6 and the Plaintiff left the hotel after leaving the hotel. Nonparty 6 asserted that Nonparty 1 and Nonparty 5 were to arrive later and went to the above hotel. However, Nonparty 6 asserted that Nonparty 1 and Nonparty 5 were to go to the above hotel. However, the Plaintiff did not see the above head of the hotel since he arrived at the front of the above hotel.

D. On February 2, 2006, the Plaintiff made a written application to the instant company (name omitted) stating that “The Plaintiff had a person who wants Nonparty 1 and Nonparty 5 to enter the instant company, and had a photograph of his face to that effect.” On February 28, 2006, 15 employees of the branch (not including the Plaintiff) shall damage the honor of the (name omitted) branch and Nonparty 1 and Nonparty 5 (not including the Plaintiff) and spaced their employees, and submitted to the instant company a written confirmation of the fact that Nonparty 1 did not have any fact between Nonparty 5 and the mother at the request of the instant company.

E. On January 1, 2006, the Plaintiff and Nonparty 1 went out of the election for female representatives in the Seoul Northern District in the Nowon-gu Seoul Northern District, and the Plaintiff was elected as a representative. On February 17, 2006, the Plaintiff attended the regular meeting of the union members of the instant case and the monthly meeting of the union members of the instant case on March 24, 2006 and told other representatives to the effect that “the perpetrator of the sexual harassment case in 2004 has been detained. Nonparty 1 had a person who wants to enter the breast-Nam and her mother within a branch.”

F. From March 9, 2006 to May 4, 2006, Nonparty 1 received outpatients from the hospital affiliated with the Ghee University due to “the two pains, chest answers, concentrated answers, fall, apprehensions, water surface disorders, light depression, and physical symptoms for interest in the self-regulation” at the hospital affiliated with the Ghee University.

G. On May 23, 2006, Nonparty 1 filed a petition with the Defendant as the respondent on May 23, 2006, under which the Plaintiff was the respondent. On August 29, 2006, the Committee for the Correction of Discrimination under the Defendant: (a) investigated the said petition case; (b) on August 29, 2006, there was a hostile and insulting working environment for Nonparty 1 due to the Plaintiff’s sexual harassment; (c) made a decision on the recommendation of personnel measures against the Plaintiff’s representative director (hereinafter “instant decision”).

H. On September 14, 2006, the Defendant notified the Plaintiff of the decision to recommend the Plaintiff to take human rights education courses organized by the Defendant, and each decision to recommend the representative director of Hyundai Motor Company to take measures to prevent Nonparty 1 from working in the same space as the Plaintiff (hereinafter “instant disposition”).

[Grounds for recognition] Gap 1-16, Eul 1-4 (including each number), the witness non-party 7, 8, 9, and 10's testimony and the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

The Plaintiff’s act merely stated only objective facts for the public interest, and it was not conducted for the purpose of inducing Nonparty 1 to feel sexual humiliation or creating a hostile and insulting working environment for Nonparty 1. However, the Defendant’s above disposition was erroneous by misapprehending the facts or by misapprehending the legal principles.

B. Relevant statutes

m. Administrative Litigation Act

Article 2 (Definitions)

(1) The definitions of terms used in this Act shall be as follows:

1. The term "disposition, etc." means the exercise or refusal of public authority by an administrative agency as an enforcement of law with respect to a specific fact, other corresponding administrative actions (hereinafter referred to as "disposition") and an adjudication on an administrative appeal;

Article 19 (Subject Matter of Revocation Lawsuit) A litigation for revocation shall be subject to disposition, etc.: Provided, That in cases of a litigation for revocation of adjudication, it shall be limited to cases where it is based on the inherent

/National Human Rights Commission Act

Article 2 (Definitions) The definitions of terms used in this Act shall be as follows:

1. The term "human rights" means human dignity, value, liberty and rights guaranteed by the Constitution and Acts, or recognized by international human rights treaties to which the Republic of Korea has acceded and ratified, and by international customary laws;

4. The term "discriminatory act against the infringement of the right of equality" means any of the following acts, without reasonable grounds, on the grounds of sex, religion, disability, age, social status, region of origin (referring to place of birth, original domicile, permanent domicile, principal area of residence before the full adult age, etc.), state of origin, nation of origin, physical conditions such as features, whether married or given birth, family form or family situation, race, skin color, thought or political opinion, record, record record, past offense whose effect of punishment has been extinguished, sexual orientation, academic career, medical history, etc.: Provided, That the temporary favorable treatment to a particular person (including a group of particular persons; hereinafter the same shall apply), the enactment and amendment of Acts and subordinate statutes and its contents shall not be deemed a discriminatory act against the right of equality (hereinafter referred to as "discriminatory act"):

(a) An act of favorably treating, excluding, discriminating against or unfavorably treating a particular person regarding employment (including recruitment, appointment, education, posting, promotion, payment of wages and any other money or valuables, financing, age limit, retirement, dismissal, etc.);

(b) An act of favorably treating, excluding, discriminating against or unfavorably treating a particular person regarding the supply or use of goods, services, means of transportation, commercial facilities, land and residential facilities;

(c) An act of favorably treating, excluding, discriminating against or unfavorably treating a particular person regarding the education and training at educational facilities or institutions for vocational training or the use thereof;

(d) Sexual harassment;

5. The term "sexual harassment" means that any employee, employer or worker of a public agency causes him/her to feel sexual humiliation or aversion by using his/her position or sexual comments, etc. in relation to his/her duties, employment and other relations, or gives him/her disadvantage in employment on the ground of failing to comply with the sexual comments, other demands, etc.;

Article 25 (Recommendation of Improvement or Rectification of Policies and Practices)

(1) The Commission may, if deemed necessary to protect and improve human rights, recommend related agencies, etc. to improve or rectify specific policies and practices or present opinions thereon.

(2) The heads of related entities receiving any recommendation under paragraph (1) shall respect and endeavor to implement the said recommendation.

(3) Where the head of the agency in receipt of a recommendation under paragraph (1) fails to implement the said recommendation, he/she shall explain the reasons therefor to the Commission in writing.

(4) The Commission may, if deemed necessary, publish its recommendation and opinions under paragraph (1) and the details explained by the heads of related entities under paragraph (3).

Article 30 (Matters Subject to Investigation of Commission)

(1) In any of the following cases, any person who has suffered a violation of human rights or discriminatory act (hereinafter referred to as "victim") or any person or organization that knows such fact may file a petition with the Commission:

1. Where the human rights guaranteed in Articles 10 through 22 of the Constitution has been violated or a discriminatory act has been committed in connection with the performance of duties (excluding the legislation of the National Assembly and trials by courts or courts) by State agencies, local governments or confinement or caring facilities;

2. Where a discriminatory act has been committed by a juristic person, organization or private individual.

(2) Deleted.

(3) Even if no petition as referred to in paragraph (1) is filed, the Commission may conduct an ex officio investigation if there are reasonable grounds to believe that a violation of human rights or a discriminatory act has been committed and the content thereof is deemed serious.

(4) Necessary matters concerning the procedures and methods of petitions under paragraph (1) shall be prescribed by the rules of the Commission.

Article 42 (Mediation)

(4) A decision in lieu of conciliation may include any of the following:

1. Suspension of the violation of human rights or discriminatory acts subject to investigation;

2. Reinstatement, compensation for damage, and other necessary remedies;

3. Measures necessary to prevent recurrence of the same or similar violation of human rights or discriminatory acts.

Article 44 (Recommendation of Remedies, etc.)

(1) If the Commission determines as a result of an investigation on a petition that a violation of human rights or a discriminatory act has occurred, it may recommend the following matters to the respondent, the head of the relevant institution, organization, or supervisory institution (hereinafter referred to as "competent institution, etc."):

1. Implementation of safeguard measures under the subparagraphs of Article 42 (4);

2. Correction or improvement of Acts and subordinate statutes, institutions, policies and practices;

(2) The provisions of Article 25 (2) through (4) shall apply mutatis mutandis to the head of the competent agency, etc. in receipt of a recommendation under the provisions of paragraph (1).

Article 45 (Accusation and Recommendation of Disciplinary Action)

(1) When the Commission recognizes that the content of a petition constitutes a criminal act as a result of investigation on the petition and criminal punishment therefor is required, it may file a criminal charge with the Prosecutor General: Provided, That if the defendant is a soldier or a civilian military employee, the Commission may file a criminal charge with the Chief of Staff

(2) Where the Commission deems that a human rights violation exists as a result of investigation on a petition, it may recommend disciplinary action against the respondent or a person responsible for the violation of human rights to the head of the competent agency

(3) The Prosecutor General, the Chief of Staff of the military, or the Minister of National Defense who has received an accusation under paragraph (1) shall terminate an investigation within three months from the date of receipt of the accusation and notify the Committee of the results thereof: Provided, That if it is impossible to complete the investigation within three months, the reason therefor shall

(4) The head of a competent agency, etc. who receives a recommendation from the Committee under paragraph (2) shall respect such recommendation and notify the Committee of the results.

(1) The former Act on Prohibition of and Remedies for Gender Discrimination (amended by Act No. 7422 of March 24, 2005)

Article 7 (Prohibition, etc. of Sexual Harassment)

(1) Workers, employers and workers of public agencies shall not engage in sexual harassment.

(2) The heads and employers of public agencies shall take necessary measures, such as conducting education for prevention of sexual harassment, as prescribed by Presidential Decree, and the heads of public agencies shall submit the results of measures taken to the Minister of Gender Equality

(3) The heads of public agencies and employers shall be prohibited from taking any disadvantageous measures in the working conditions against those who have asserted to have suffered such damage in case where an assertion concerning sexual harassment has been made on the job, or those who have cooperated in fact-finding investigations of sexual

(4) Sexual harassment shall be deemed sexual harassment separately.

Article 28 (Recommendation of Corrective Measures and Expression of Opinions)

(1) Where there exist reasonable grounds that they fall under the matters of gender discrimination as a result of the investigation under Article 22, the Commission shall determine that they are gender discrimination and recommend the head of the relevant public agency or an employer to take measures necessary for correction.

(1) The Act on the Prohibition of and Remedies for Gender Discrimination (Law No. 7422 on March 24, 2005)

The Act on the Prohibition of Gender Discrimination and Remedies therefor shall be repealed.

Addenda

(1) This Act shall enter into force on the date as prescribed by the Presidential Decree concerning the organization of the Ministry of Gender Equality and Family under Article 1 (1) of the Addenda to the Amendment of the Government Organization Act (Act No. 7413): Provided, That Article 2 (2) through (4) and Article 7 (2) of the "Act on Prohibition of and Remedies for Gender Discrimination" shall remain effective.

(Transition) The National Human Rights Commission shall succeed to the duties of the Gender Discrimination Improvement Committee at the time this Act enters into force.

C. As to the legitimacy of the primary claim

Article 28(1) of the former Act on the Prohibition of and Remedies for Gender Discrimination (amended by Act No. 7422 of March 24, 2005) provides that “The Committee on the Improvement of Gender Discrimination shall determine whether there is gender discrimination and recommend the head of the relevant public institution or the user to take measures necessary for correction, if there are reasonable grounds to believe that a case constitutes gender discrimination as a result of an investigation.” As such, a decision of sexual harassment and a recommendation of corrective measures accordingly are made in an indivisible manner, not only the recommendation of corrective measures but also the determination of sexual harassment shall be deemed an administrative disposition (see Supreme Court Decision 2005Du487 of July 8, 2005, etc.). However, Article 44(1) of the National Human Rights Commission Act provides that “When the Commission determines that a case of infringement of human rights or discriminatory acts has been committed as a result of its investigation, it shall not recommend the head of the agency, organization, or supervisory agency to which the defendant belongs, the head of the relevant public institution, or the representative director of the Commission may recommend changes in its own recommendation and recommendation:

D. As to whether the defendant's request for revocation of a recommendation to recommend human rights education to the plaintiff is legitimate

A disposition by an administrative agency (Article 19 of the Administrative Litigation Act) and an administrative disposition means the exercise or refusal of public authority as an enforcement of law with respect to specific facts by an administrative agency, and other corresponding administrative actions (Article 2(1)1 of the Administrative Litigation Act).

According to the National Human Rights Commission Act, when the National Human Rights Commission determines that a violation of human rights or a discriminatory act has occurred as a result of the investigation of a petition, it may recommend the respondent to implement relief measures under each subparagraph of Article 42(4), to correct or improve statutes, institutions, policies, and practices (Article 44(1)). No disadvantageous sanction may be imposed when the respondent fails to comply with the above recommendation, and such recommendation does not restrict the respondent’s rights or impose duties on the respondent, and it does not have an effect of regulating the legal interests of the respondent individually and specifically. Thus, the recommendation to receive human rights education against the plaintiff on September 14, 2006 does not constitute an administrative disposition that is the subject of administrative litigation.

Therefore, among the plaintiff's conjunctive claims, the lawsuit against the defendant for revocation of the recommendation for taking human rights education is unlawful.

E. As to the defendant's request for revocation of recommendation for personnel measures against the representative director of the company of this case

(i)Standing to sue;

The legal interest referred to in Article 12 of the Administrative Litigation Act refers to the direct and specific interest protected by the law based on the relevant administrative disposition, and it is merely an indirect or factual interest in the relevant administrative disposition. However, even if a third party who is not the direct party to the administrative disposition is not the other party, if the legal interest has been infringed by the law due to the relevant administrative disposition, he/she is entitled to file a revocation lawsuit and obtain a decision on the propriety thereof (see Supreme Court Decision 2006Du1289, Jan. 25, 2007).

The National Human Rights Commission Act provides that when the National Human Rights Commission determines that a violation of human rights or a discriminatory act has occurred as a result of its investigation, it may recommend the head of an affiliated agency to implement relief measures as provided for in each subparagraph of Article 42(4) and to correct or improve statutes, institutions, policies, and practices (Article 44(1)). In the instant case, the Defendant recommended the representative director of the instant company not to work in the same space as the Plaintiff and Nonparty 1, and then, as seen thereafter, the said recommendation imposes certain legal obligations on the representative director of the instant company. If the representative director of the said company takes measures to transfer to the Plaintiff, the Plaintiff is obligated to comply with the recommendation under a labor contract.

Therefore, the plaintiff is entitled to standing to file a lawsuit seeking revocation of the above disposition, since he/she has a direct and specific interest protected by law as to the defendant's recommendation against the representative director of this case.

(2) Whether an administrative disposition is an administrative disposition

The National Human Rights Commission Act provides that the head of an institution in receipt of a recommendation for correction shall respect and make efforts to implement the recommendation (Article 25(2)), and that if the head of an institution in receipt of such recommendation fails to implement the recommendation, he/she shall explain the reasons therefor in writing to the Commission (Article 25(3)), and that, if deemed necessary, the Commission may publish the recommendation, an expression of opinion, and an explanation made by the head of the institution in receipt of the recommendation (Article

According to this, since the National Human Rights Commission's recommendation for correction imposes a certain legal obligation on the employer, the defendant's recommendation for corrective measures against the representative director of the company of this case on September 14, 2006 constitutes administrative disposition subject to administrative litigation.

(3) Whether the act constitutes a discriminatory act

Article 2 subparag. 4 of the National Human Rights Commission Act provides that "discriminatory acts against the infringement of the right of equality" means any of the following acts committed on the basis of gender, etc. without reasonable grounds, while subparagraph (d) provides sexual harassment as a type of discriminatory acts. Thus, whether the Plaintiff's act at issue in this case constitutes a discriminatory act under the above provision shall be viewed as to whether such act constitutes a discriminatory act:

Article 7 (4) of the former Act on the Prohibition of and Remedies for Gender Discrimination (amended by Act No. 7422 of March 24, 2005) provides that "sexual harassment shall be deemed to be gender discrimination," but the above provision was repealed by Act No. 7422 of March 24, 2005, and Article 2 (1) of the Addenda to the repealed Act provides that Article 7 (4) of the same Act shall remain effective, but there was no such provision as to Article 7 (4) of the same Act. Accordingly, all sexual harassment acts before March 24, 2005 were considered to be immediately gender discrimination, but all sexual harassment acts were not immediately considered to be gender discrimination, and there was no reasonable ground to believe that there was a violation of the right to equality, and that the defendant shall bear the burden of proof by gender (the defendant asserts that sexual harassment in this case constitutes a discriminatory act by gender discrimination by gender).

However, the evidence submitted by the defendant alone is insufficient to recognize that the plaintiff's act was against the non-party 1's gender without a reasonable reason, and there is no other evidence to acknowledge it, and thus, the defendant's measure of recommending personnel measures against the representative director of the company of this case based on such premise is unlawful without any need to further examine

3. Conclusion

Therefore, the part concerning the main claim among the lawsuit of this case and the part seeking the revocation of the recommendation for human rights education recommended by the defendant against the plaintiff in the conjunctive claim of this case are unlawful, and each of them is dismissed. The part seeking the revocation of the recommendation for human rights measures against the representative director of the company of this case as of September 14, 2006 among the plaintiff's conjunctive claim of this case is justified, and it is so decided as per Disposition.

Judges Jeong Jong-chul (Presiding Judge) (Presiding Judge)