National Human Rights Commission Act | Analysis of a Supreme Court Judgment Holding That Misconduct Committed by a Student at a National University of Education Cannot Be Regarded as “Sexual Harassment” Under the National Human Rights Commission Act

The background of the administrative litigation concerning the National Human Rights Commission Act is as follows.

A, who entered a national university of education in Korea in 2015, prepared a “new-student introduction document” the following year together with male students in the same department.

This document contained the names and ages of the incoming female students, along with sentences evaluating their appearance.

The document prepared in this way was disclosed at a “meet-and-greet” gathering attended only by the male students. They passed the document around, evaluated the female students’ appearance, and stated whether they found them attractive.

Several years later, an internet user disclosed the existence of the “new-student introduction document” on an online community, calling it a deplorable custom of the university A attended, and the matter became the subject of controversy.

In response, the male students of that cohort who had prepared the document drafted and released a letter of apology.

The controversy nonetheless grew, and once the matter began to be reported in the media, the supervising office of education conducted a large-scale audit.

Having completed the audit, the office of education concluded that A had prepared a document containing appearance evaluations of the female students and had used it at the meet-and-greet gathering, where it was passed around and served as a vehicle for evaluating appearance and for sexual harassment.

On that basis, it found that A, who had been appointed as an elementary school teacher after graduating from the university of education, had violated the duty to maintain dignity, and it imposed a disposition of “reprimand.”

A objected to this and filed a lawsuit seeking revocation of the reprimand disposition.

Both the courts of first and second instance declined to accept A’s arguments.

The booklet in this case, in whose preparation A participated, was used as a tool at the meet-and-greet gathering, and, considering the various circumstances together, the courts held that it could be sufficiently inferred that there had been words and conduct by the attendees containing elements of sexual harassment, such as evaluating the appearance of the incoming female students at the time of the gathering.

The courts added that, although the conduct in this case occurred before A was appointed as a public official, disciplinary action is still possible where, after appointment, a public official has damaged the honor or prestige of public officials.

They further pointed out that an elementary school teacher is responsible for educating elementary school students who are at a stage of developing their sexual self-identity, and that, with the occurrence of an incident revealing a distorted perception of women, the public’s trust in elementary school teachers had been undermined.

In the course of the litigation, A argued that, under the State Public Officials Act, a request for a disciplinary resolution cannot be made once three years have elapsed from the date on which the ground for disciplinary action arose, and contended that the disposition in question, made after the three-year period, was improper, pressing this point strongly.

The lower courts, however, also rejected this argument by A.

Article 52 of the former Educational Officials Act had provided that, in the case of disciplinary action arising from an “act of sexual harassment under Article 2, subparagraph 3, item (d) of the National Human Rights Commission Act,” the statute of limitations was “10 years.”

The reasoning was that, because A’s conduct constituted sexual harassment as defined by the National Human Rights Commission Act, the statute of limitations had to be regarded as 10 years, and the disposition was therefore justified.

The Supreme Court, which took up the review concerning the National Human Rights Commission Act, reached a determination different from that of the lower courts.

It reversed the lower judgment that had dismissed A’s appeal and remanded the case.

The Supreme Court first stated that A’s conduct could not be regarded as “sexual harassment” as defined by the National Human Rights Commission Act.

The National Human Rights Commission Act defines sexual harassment as “an act in which a worker of a public institution, an employer, or an employee, by using his or her position and in connection with work or the like, causes another to feel sexual humiliation or aversion through sexual words or conduct.”

The Supreme Court focused on the phrase “worker of a public institution” in that provision.

The Supreme Court held that A, who at the time was a student enrolled at a national university of education, was not performing the work of a public institution but was merely a person receiving certain services from a public institution on a contractual or statutory basis.

In other words, because A at the time of the incident was not a person who had a certain connection with a public institution and performed work, the misconduct in this case likewise could not be regarded as an act of sexual harassment under the National Human Rights Commission Act.

The Supreme Court explained that the lower court had erred by misapprehending the legal principles concerning the subject of sexual harassment and the like, thereby affecting the judgment, and that the ground of final appeal asserting this point was therefore well founded.

This analysis has examined a Supreme Court judgment holding that misconduct committed by A, an elementary school teacher, while enrolled at a national university of education cannot be regarded as “sexual harassment” as defined by the National Human Rights Commission Act.

This Supreme Court judgment shows that the applicable “statute of limitations for disciplinary action” may differ depending on how the statutory provision is interpreted.

It is a matter that those preparing administrative litigation related to disciplinary action may wish to review carefully.

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If you have any inquiries regarding administrative litigation, you are welcome to visit Daeryun Law Firm LLP at any time to request a consultation.