2012Guhap5338 Revocation of disposition of changing schools

○ Kim

Not more than Seo-gu, Seo-gu, Seo-gu.

Seoul High Court Decision 200Do414

[Defendant-Appellee]

Since it is a minor, the legal representative Kim ①, the person with parental authority Matern Kimn

The head of the astronomical Middle School;

Attorney Yu-hee, Counsel for the defendant-appellant

Litigation Performers Kim Jong-soo, Kim Jong-hwan

July 3, 2013

August 21, 2013

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit are assessed against the Plaintiff.

The Defendant’s transfer disposition on July 10, 2012 against the Plaintiff is revoked.

1. Details of the disposition;

A. On July 6, 2012, the autonomous committee on countermeasures against school violence at the astronomical Nansung Middle School (hereinafter referred to as the "autonomous committee") decided to request the Defendant to take measures to transfer (paragraph 8) to the Plaintiff pursuant to Article 17(1) of the Act on the Prevention of and Countermeasures against School Violence (hereinafter referred to as the "Act on the Prevention of School Violence") on the ground that the Plaintiff, who was enrolled in the first and nine classes of the meeting on July 6, 2012, exercised school violence such as violence and harassment against the same student.

B. On July 10, 2012, the Defendant issued a transfer disposition to the Plaintiff according to the resolution of the autonomous committee (hereinafter “instant disposition”).

C. On August 23, 2012, the Plaintiff filed a request for re-examination with the Office of Education, Chungcheongnam-do, and it was dismissed on August 28, 2012. On September 11, 2012, the Plaintiff filed a request with the Education Administrative Appeals Commission for a trial on the instant disposition, but was dismissed on November 8, 2012.

D. The Plaintiff transferred to Hocheon Middle School on September 10, 2012.

[Ground of Recognition] In the absence of dispute, Gap evidence Nos. 1, 2, 4, and 5 (which has a number)

The purpose of the whole pleading, including the number of branches),

2. Whether the disposition of this case is unlawful

A. Summary of the plaintiff's assertion

1) procedural illegality

The instant disposition is unlawful on the following procedural defects.

A) The Defendant: (a) on July 5, 2012, the day before the date when the Plaintiff’s instant meeting was held; (b) did not notify the Plaintiff’s parents of the reason; and (c) did not err in the convocation procedure by sending the notice to the Plaintiff.

B) The instant disposition was based on an investigation conducted by the Plaintiff’s guardian or assistant without the Plaintiff’s opportunity to attend during the final examination period. During the instant meeting, the instant disposition was conducted in an unlawful manner, such as: (a) preventing the Plaintiff from participating in the examination; and (b) reading the details already investigated by the Plaintiff; and (c) demanding the Plaintiff’s answer.

C) After the instant disposition, the Plaintiff demanded the disclosure of materials on which the disposition was based, but the Defendant rejected the disclosure.

2) substantial illegality (the deviation and abuse of discretion)

The instant disposition is the most severe measure that a middle student, who is subject to compulsory education, can be forced to take when he/she exercised school violence. The Plaintiff’s act is limited to the level of ordinary school attendance among students, and considering the psychological suffering that the Plaintiff may suffer due to the instant disposition, future disadvantage, etc., the instant disposition is excessively harsh to the Plaintiff at the age of green age compared to the public interest he/she intends to achieve, and thus, is unlawful by deviating from or abusing the scope of discretion.

(b) Relevant statutes;

As shown in the attached Form.

C. Determination

1) Determination on the assertion of procedural illegality

In full view of the purport of the arguments in Gap evidence 2 and Eul evidence 3 through 6, the plaintiff used violence, such as cutting the pen of his half-year student and thrown away from the brush, and the victim student was aware of his use of intimidation and violence to the victim student. The defendant decided to hold an autonomous committee pursuant to the provisions of relevant Acts and subordinate statutes. The defendant notified the plaintiff and his parents of his/her act of school violence after hearing the plaintiff's school violence. The autonomous committee provided the plaintiff and the victim student's statement about the school violence and the opinion of the victim student and their parents. After hearing the victim's statement, the plaintiff provided the plaintiff with an opportunity to make a statement. The plaintiff's mother after entering Mank Kim Kim, the plaintiff's mother made his/her statement to the effect that the plaintiff's statement about the school violence, and then the victim's statement to the effect that the plaintiff's statement to the effect that he/she did not have an opportunity to make a statement to the plaintiff's opinion after hearing his/her opinion to the plaintiff's opinion.

In other words, Article 21 (1) of the Administrative Procedures Act provides that in cases where an administrative agency imposes an obligation on a party or imposes a restriction on the rights of the party, the party shall be notified of the fact that the cause for the disposition, the contents of the disposition, the legal basis, etc. in advance. However, Article 21 (4) 1 of the Administrative Procedures Act requires an urgent disposition for the safety and welfare of the public.

In accordance with the statement of the evidence No. 6, the defendant, when holding the autonomous committee prior to the disposition of this case, shall not give notice to the case, and the defendant, through the plaintiff, "the autonomous committee shall be held pursuant to the plaintiff's school violence by sending a written request for school attendance to the plaintiff. Although the plaintiff has been notified of this fact, it may be deemed that prompt disposition is necessary for the safety and welfare of the students in light of the degree and seriousness of school violence exercised by the plaintiff, and the autonomous committee shall notify the aggressor student and his parents in advance pursuant to Article 17 (5) of the above Act in accordance with Article 17 (5) of the above Act and the plaintiff's mother appears to have expressed a sufficient opinion at the autonomous committee. In light of the above, it is difficult to say that there is an error of law in the course leading to the disposition of this case, and there is no evidence to acknowledge it otherwise. This part of the plaintiff's assertion is without merit.

Meanwhile, considering the overall purport of the argument in the statement No. 3-1 and No. 2, the Plaintiff’s mother of the Plaintiff’s knives and knives, on September 4, 2012, the Plaintiff’s knives and knives filed a request with the Defendant for an official opening on the student life guidance card prepared by the Plaintiff’s kives and kives. The Defendant’s meeting minutes of the autonomous committee and the life guidance guidance guidance support card constitutes information subject to non-disclosure pursuant to each subparagraph of Article 9(1) of the Official Information Disclosure Act. In light of the foregoing, the Defendant’s refusal of information disclosure can be recognized as non-disclosure. However, even if there was any error of the Plaintiff’s assertion in the Defendant’s refusal of information disclosure after the instant disposition, such a cause may not affect any illegality of the disposition of this case previously taken place.

2) Determination as to the assertion of substantive illegality

School violence refers to actions that involve physical, mental, or property damage due to injury, assault, confinement, intimidation, kidnapping, abduction, defamation, insult, coercion, coercion, forced, forced, forced, bullying, cyber-bullying, obscene and violent information, etc. (Article 2 subparag. 1 of the Act), and in consideration of the purpose of the law that intends to protect the human rights of students, it continues to repeat the degree of bullying that does not reach a crime under the Criminal Act, and continuously repeats the degree of bullying that is not easy, and if the victim is suffering from physical or mental distress, it is necessary to take appropriate measures corresponding thereto, such as protecting the victim and taking measures against the aggressor.

As to this case, comprehensively taking account of the purport of body evidence Nos. 2, 2, and 6, the Plaintiff continued to repeating harmful acts, such as assault, compromise, insult, etc. against several victims for a considerable period of time. The Plaintiff, who was aware of the Plaintiff’s harmful acts by the victimized student, had the Plaintiff threatened the victimized student or exercised violence against the victimized student. The victimized student complained of uneasiness due to the Plaintiff’s retaliation, and the parents of the victimized party asked the Defendant to solve the problem. Meanwhile, the Plaintiff did not seem to have the anti-discrimination even in the course of guiding the victim’s appeal due to the Plaintiff’s act, and the Plaintiff’s mother was able to find the school at his own expense, and her mother was able to mislead the victimized student or her victim.

In addition, the fact that the parents of victim students demand strong disciplinary action can be recognized because they did not agree smoothly, such as not excessive, etc.

In light of the facts alleged by the Plaintiff, the Plaintiff’s act of school violence is not one-time or contingent, but it cannot be deemed that the severity of the damage is light. In particular, in light of the content of the Plaintiff’s bath theory and the degree of the use of violence, etc., the Plaintiff appears to have exercised school violence in bad faith, and thus it is difficult for the Plaintiff to take advantage of the fact that it is difficult for the Plaintiff to have exercised school violence in bad faith, and due to school violence such as the Plaintiff’s bath theory, etc., it appears that the victim would have suffered considerable mental suffering such as apprehension and fear, etc., and it is difficult to see that the Plaintiff is against one’s own school violence in light of the Plaintiff’s attitude expressed before and after the instant disposition and during the pleading process. This part of the Plaintiff’s assertion is without merit.

3. Conclusion

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

Judges Kim Jong-ri

Judge Lee Dong-young

Judges Cho Jae-ra

Site of separate sheet

Related Acts and subordinate statutes

▣ 초 · 중등교육법

Article 18 (Discipline of Students)

(1) The head of a school may discipline or otherwise guide students, as prescribed by Acts and subordinate statutes or school regulations, if deemed necessary for education: Provided, That he/she shall not dismiss students who receive compulsory education from school.

(2) The head of a school shall go through due formalities, such as providing the relevant student or his/her guardian with an opportunity to state his/her opinion.

▣ 학교폭력예방 및 대책에 관한 법률

Article 2 (Definitions)

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

1. The term "school violence" means an act resulting in physical, mental, or property damage caused by an injury to a student inside or outside of school, assault, confinement, intimidation, kidnapping, abduction, defamation, insult, insult, coercion, sexual assault, bullying, cyber bullying, or obscene or violent information via an information and communications network. 3. "A aggressor student" means a student who commits school violence or takes part in such act, among aggressors;

4. The term "victim student" means a student who has sustained an injury resulting from school violence;

Article 12 (Functions of Establishment of Autonomous Committees for Countermeasures against School Violence)

(1) Each school shall have an autonomous committee of countermeasures against school violence (hereinafter referred to as "autonomous committee") to deliberate on matters related to the prevention of and countermeasures against school violence: Provided, That if any reason prescribed by Presidential Decree exists in the organization of the autonomous committee, at least two schools may establish a joint autonomous committee after filing a report with the superintendent of the relevant office of education.

(2) Each autonomous committee shall deliberate on the following matters for the prevention of and countermeasures against school violence:

1. Establishing a school system to prevent school violence and to develop countermeasures against school violence;

2. Protecting victim students;

3. Guiding and punishing aggressor students;

4. Mediation between victim students and aggressor students;

5. Other matters prescribed by Presidential Decree.

(3) An autonomous committee may request the head of a school or the chief of a competent police station to provide relevant data on school violence in the relevant area.

(4) Matters necessary for the establishment and operation of an autonomous committee shall be prescribed by Presidential Decree, taking into consideration the scale of each region and each school.

Article 13 (Organization and Operation of Autonomous Committees)

(1) An autonomous committee shall be comprised of not less than five but not more than ten members, including one chairperson, and a majority of the total members shall be commissioned from among representatives of parents directly elected at a parents plenary meeting as prescribed by Presidential Decree: Provided, That where there exists any reason making it impracticable to elect representatives of parents at a parents plenary meeting of parents, representatives of parents elected at a council of representatives of parents comprised of representatives of each class may be commissioned.

(2) An autonomous committee shall hold a meeting at least once a quarter, and the chairperson of the autonomous committee shall convene a meeting in any of the following cases:

1. Where requested by at least 1/4 of the members registered with the autonomous committee;

2. Where requested by the head of a school;

3. Where requested by a victim student or his/her parents;

4. Where the occurrence of school violence is reported or reported to the committee;

5. When an aggressor student is reported or reported as a intimidation or retaliation;

6. Other cases deemed necessary by the chairperson.

(3) An autonomous committee shall prepare and keep minutes stating the date, place, members present, discussions, resolutions, etc. of the meeting.

(4) Other matters necessary for the organization and operation of the autonomous committee shall be prescribed by Presidential Decree.

Article 17 (Measures against aggressor Students)

(1) An autonomous committee shall request the head of a school to take any of the following measures (or several concurrent measures) against an aggressor student in order to protect a victim student and to guide and educate an aggressor student, and the standards applicable to each measure shall be prescribed by Presidential Decree: Provided, That expulsion from school shall not apply to an aggressor student in the course of compulsory education:

1. Written apology for a victim student;

2. Prohibition of the contact, intimidation, and retaliation against the victim students or reported or accused students;

3. Service to a school;

4. Social services;

5. Completion of a special education course or psychological treatment from an internal or external expert;

6. Suspension of attendance;

7. Change of class;

8. Transfer.

9. Removal from school.

(5) An autonomous committee shall provide an aggressor student and his/her guardian with an opportunity to make an oral statement or undergo other appropriate procedures before making a request for measures under paragraph (1) or (2).

(6) Upon receipt of a request under paragraph (1), the head of a school shall take the relevant measures within 14 days.

(7) When the head of a school takes measures under paragraph (4), he/she shall notify the aggressor student and his/her guardian thereof, and when an aggressor student refuses or evades such measures, he/she shall take disciplinary measures against the aggressor student pursuant to Article 18 of the Elementary and Secondary Education Act.

Article 20 (Duty to Report School Violence)

(1) A person who intends to inspect school violence or becomes aware of such fact shall immediately report such fact to the relevant agencies, such as schools.

(2) Upon receipt of a report under paragraph (1), the institution shall notify the aggressor student and the guardian of the victim student and the head of the school to which the victim student belongs.

(3) The head of a school notified pursuant to paragraph (2) shall notify the autonomous committee thereof without delay.

(4) A person who becomes aware of the preparation for or conspiracy of school violence may file an accusation with the head of a school or the competent autonomous committee: Provided, That a teacher who becomes aware of such fact shall report it to the head of the school, and inform the parents of students of such fact.

(5) No one shall give any disadvantage to a person who has reported school violence pursuant to paragraphs (1) through (4) on the ground of such reporting.

▣ 학교폭력예방 및 대책에 관한 법률 시행령 ( 2012 . 7 . 31 . 대통령령 제24002호로 일부 개정 되기 전의 것 )

Article 14 (Organization and Operation of Autonomous Committees)

(7) When the chairperson of an autonomous committee determines the date and time of a meeting, he/she shall do so at a reasonable time to attend the meeting, such as after work and weekend.

Article 19 (Standards for Application of Measures to aggressor Students)

The standards for application by measure under Article 17 (1) of the Act shall be determined in consideration of the following matters, and the detailed standards shall be determined and publicly notified by the Minister of Education, Science

1. The seriousness, sustainability, and intentionalness of school violence that an aggressor student has exercised;

2. The degree of the reflection of the aggressor student;

3. The possibility of leading an aggressor student due to the relevant measures.

4. Degree of settlement between the aggressor student and his/her guardian and the victim student and his/her guardian;

5. Whether a victim student is a disabled student;

Article 20 (Measures for Transfer to aggressor Students)

(1) Where an autonomous committee requests the head of an elementary school, middle school, or high school to take measures to change an aggressor student pursuant to Article 17 (1) of the Act, he/she shall request the head of an elementary school or middle school to the head of a district office of education, and the head of a high school to assign the relevant student to

(2) The superintendent of the competent office of education or the head of the competent district office of education shall, when allocating aggressor students to transfer schools, take into account sufficient conditions for the protection of victim students, and shall notify the head of the relevant office of education or the head of the relevant education

(3) The superintendent of education or the head of a district office of education shall, upon receipt of notification under paragraph (2), allocate the relevant aggressor student to the school to be transferred.

(4) When an aggressor student who has been transferred to a school pursuant to paragraphs (2) and (3) and a victim student are enrolled in a higher school, the superintendent of the competent office of education or the head of the competent district office of education shall allocate different schools respectively. In such cases, the victim student shall be assigned to the school by post