Bullying and Sexual Harassment in the Workplace

Chapter 3. Workplace Sexual Harassment: Prevention and Response

Section 2. Responding to Reported Incidents of Workplace Sexual Harassment Ⅴ. Handling of Incidents by Investigative Agencies and the Courts

1. Investigative agencies

(1) Handling of incidents by the police
Police handle disputes related to sexual harassment when an incident falls under the category of sexual assault crimes or crimes equivalent to sexual assault, according to the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes. The Commissioner General of the National Police Agency designates a specialized police officer for sexual assault crimes at each police station and instructs them to investigate a victim’s claims unless special circumstances preclude such investigation (Article 26, paragraph 2).

(2) Handling of incidents by prosecutors
Prosecutors handle disputes related to sexual harassment in cases where an employer disadvantages workers or victims who have reported incidents of sexual harassment (Article 14, paragraph 6 of the Equal Employment Act) Also, when the case falls under the category of sexual assault crimes of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes or crimes under the Criminal Act.
The Labor Standards Act stipulates that “investigation of the site, submission of documents, interrogation, and other investigations according to this Act or other labor-related laws shall be carried out by labor supervisors belonging to the prosecutor's office and the Ministry of Employment and Labor” (Article 105). The Act on Special Cases concerning the Punishment, etc. of Sexual Crimes stipulates that "the Prosecutor General shall designate a prosecutor in charge of sexual assault crimes at each local prosecutor's office and instruct them to investigate a victim’s claim, unless special circumstances preclude such investigation" (Article 26, paragraph 1).
If, upon investigation, the prosecutor finds that there is evidence of a crime occurring, the prosecutor shall file criminal charges with the court. If there is no evidence of a crime, the prosecutor may decide not to indict. Types of non-indictment decisions include suspensions of indictment, cleared of suspicion, no crime, no authority to prosecute, dismissal of the case, and suspension of prosecution.
Prosecutors may also make summary indictments, which are requests for a written order for a fine without holding a trial.

2. Handling of lawsuits by the courts

The Constitution of the Republic of Korea stipulates that "Judicial power shall be vested in courts composed of judges" (Article 101, paragraph 1) and that "The courts shall be composed of the Supreme Court […] and other courts at specified levels" (Article 101, paragraph 2). In accordance with the Court Organization Act, courts have jurisdiction over all legal disputes, except for cases where the Constitution provides special provisions, and they have authority as prescribed by that Act and other Acts (Article 2, paragraph ① There are seven types of courts: 1) Supreme Court, ② High Court, ③ Patent Court, ④ District Court, ⑤ Family Court, ⑥ Administrative Court, and ⑦ Bankruptcy Court (Article 3, paragraph 1). The Supreme Court primarily conducts legal reviews of the interpretation and application of laws by the courts. The judgment of a higher court binds lower courts with respect to case in question (Article 8).

(1) Processing of criminal lawsuits
When a prosecutor investigates a sexual assault crime or a related crime and decides to indict (file charges) against the accused, a criminal trial is held in criminal court. If the accused turns out to be guilty, a penalty is imposed. The Act on Special Cases concerning the Punishment, etc. of Sexual Crimes stipulates that "the president of the district court or of a higher court shall designate a trial division in exclusive charge of sexual crimes to render judgment on such crimes, except in exceptional circumstances" (Article 28).
The court may impose fines or order the accused to provide restitution through a simplified order without going through a public trial. When the court pronounces a guilty verdict (excluding suspended sentences) or issues a simplified order for sexual crimes, it must also issue an order for completion of a program to prevent recurrence or a sexual offender treatment program of up to 500 hours, as necessary (Article 16, paragraph 2).
In some cases, individuals or groups who are accused of sexual harassment or sexual assault may enter a charge of defamation or false accusation against the alleged victim and/or the person or group assisting the alleged victim, and criminal trials may proceed.

(2) Processing of civil lawsuits
In cases related to sexual harassment, civil lawsuits are filed when a victim is seeking compensation from the perpetrator for damages suffered such as mental distress or medical expenses. Civil lawsuits can also be filed against employers, school corporations, presidents, or the Republic of Korea if the victim claims damages for joint and several liability for the illegal acts of the perpetrator as their employer or supervisor. Additionally, there are lawsuits where the victim seeks compensation for damages for defamation against the perpetrator and related parties.
On the other hand, civil lawsuits can also be filed by alleged perpetrators of sexual harassment, who seek invalidation of personnel measures or confirmation of their status against employers or universities in response to the disciplinary measures they have received. Civil lawsuits can also be filed in cases where the alleged victims or those who support the alleged victims are sued for defamation by alleged perpetrators of sexual harassment or related parties.

(3) Processing of administrative lawsuits
The Administrative Court deals with administrative lawsuits filed against the National Labor Relations Commission, the National Human Rights Commission, and other administrative agencies, when there is dissatisfaction with their handling of disputes related to sexual harassment and remedies for rights.
For instance, when national universities impose disciplinary actions against professors and employees who have been accused of sexual harassment, those professor or employees may file administrative lawsuits after going through the appeal process of the Appeal Commission for Educators or the Appeals Commission.

For further questions, please
call (+82) 2-539-0098 or email bongsoo@k-labor.com

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