2020 Dou15277 Revocation of School Violence Action

South ○

Jeon-nam Mine-gun

Law Firm E&S Partners

[Defendant-Appellant]

Jeonnam-do ○○○○○○ Office of Education

A litigation performer Na○, Do○, Kim○-○

April 22, 2021

May 20, 2021

1. The Defendant’s written apology and disposition against the Plaintiff on September 4, 2020 shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. At the time of the instant case, the Plaintiff and Jeong Jong-○ was a student who was enrolled in the third year in the ○○ Elementary School located in the Jeonnam ○○ Military at the time of the instant case.

B. On December 20, 2019, the Plaintiff and Jeong Jong-○ attended the education for the first-third-year swimming practice of the above elementary school at the swimming pool outside the school.

C. The Plaintiff and Ma○○○ had a physical contact between two persons who were waiting for the order of taking ices in the swimming pool during the above training hours.

D. On June 19, 2020, on the part of the parents of the regular ○○○ filed a verbal report with the Plaintiff that the regular ○○ was subject to school violence from the Plaintiff, and the report and recognition are as follows.

- 4th grade 1 in 2019, the Plaintiff’s 4th grade 2019 showed that there was a 4-year regular ○○ (math grade students) and there was a string of play, and the Plaintiff entered that “Iskn’s fright to play” in 2019, i.e., the Plaintiff’s “Iskn’s fright to play.”

E. After the receipt of the above report, the "report on investigating school violence case" was prepared according to the student's statement, and the main contents are as follows.

The summary of the case - the plaintiff asserts that he has been fit for her block from the plaintiff, and that he has expressed that he/she was at the time of her block in the swimming pool. In this regard, the plaintiff argued that he/she was at the time of her blick with his/her hand, waiting for block in the swimming pool, he/she was at the time of her blick with his/her blick.

- 이에 대한 목격 학생의 진술로 3학년 김○○, 4학년 김○○, 위○○, 이○○, 정○○이상 5명은 원고가 정○○의 볼을 치거나 건드렸다고 진술하고 있으며, 그 이후로 김○○ 학생은 원고가 정○○에게 사과했다는 말을 들었으며, 정○○은 사과하는 장면을 보았다고 진술함○ 정○○의 주장내용 및 근거자료- 정○○이 원고에게 얼굴을 들이댔고, 이에 원고가 뺨을 1차례 때렸다고 주장함- 이에 정○○과 보호자는 원고가 위 사안과 관련하여 자신의 잘못을 반성하지 않고 그냥 넘어가서 속상했다고 주장함- 애플데이 때 원고가 정○○에게 보낸 사과 편지 내용으로 보아 그동안 원고가 정○○ 학생을 놀려왔다고 주장함○ 원고의 주장내용 및 근거자료- 수영장에서 다이빙을 하기 위해 줄을 서서 기다리던 중 심심해서 손을 돌리다가 정○○의 볼을 실수로 1차례 때렸다고 주장함‧ 3학년2) 김○○의 목격진술: “손을 뻗었는데 정○○ 오빠가 그 자리에 있어서 뺨을 맞았다.”‧ 4학년3) 이○○의 목격진술: “원고는 모르고 손을 흔들다가 손가락 끝으로 정○○의 볼을 건드렸다.”- 위 사안과 관련하여 정○○ 학생에게 사과를 하였다고 함○ 가해학생이 행사한 학교폭력의 고의성- 고의성: 원고와 목격학생들의 진술로 보아 다이빙을 하기 위해 줄을 서서 몸을 풀던 중 팔을 휘두르다 정○○의 볼을 건드린 상황으로 보임

F. On August 5, 2020, the Jeonnam-do Office of Education in charge of the above school held a deliberation committee on school violence measures against the Plaintiff on August 5, 2020 to determine the Plaintiff’s written apologys as to the victim students. However, the Defendant deemed that there was procedural defect that did not give a party an opportunity to state his/her opinion on the failure to notify the above committee of the fact that there was a procedural defect in the notification of the party’s holding of the said committee.

G. Jeonnam-do Office of Education supplemented it and held a deliberation committee on countermeasures against school violence again on the same issue on September 3, 2020. The committee reported the case in accordance with the above "report on Investigation into School Violence". The committee decided the written apology of victim students as before discussion. Accordingly, on September 4, 2020, the defendant issued the said written apology and disposition (hereinafter "the instant disposition").

H. The Plaintiff appealed to the instant disposition, and filed an administrative appeal, but the Administrative Appeals Commission on Education, Arts, and Arts, Jeonnam-do dismissed the Plaintiff’s claim on November 17, 2020.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 5, Eul evidence Nos. 1, 2, 4, 7, and 8, the purport of the whole pleadings

2. The plaintiff's assertion

Since the Plaintiff’s act does not constitute school violence, the instant disposition that deemed the Plaintiff’s act constitutes school violence does not exist and is unlawful. Even if the Plaintiff’s act constitutes school violence, the instant disposition is unlawful by abusing and abusing discretion.

3. Relevant statutes;

It is as shown in the attached Form.

4. Determination as to the existence of the grounds for disposition

A. Relevant legal principles

The purpose of the former Act on the Prevention of and Countermeasures against School Violence (amended by Act No. 17954, Mar. 23, 2021; hereinafter “former Act on the Prevention of and Countermeasures against School Violence”) is to protect the human rights of students and foster students as healthy members of society through the protection of victim students, the guidance and education of aggressor students, and mediation between victim students and aggressor students (Article 1). However, it is not desirable to rate all conflicts or disputes arising in the course of school life to school violence. Thus, Article 2 subparag. 1 of the former Act on the Prevention of and Countermeasures against School Violence provides that "an act of school violence committed against students inside or outside of school" should be determined to the extent that it constitutes "an act of bodily or mental harm caused by obscene information, etc.", and that "an act of school violence" under Article 3 of the former Act should be defined as "an act of school violence" and "an act of school violence" under Article 7 of the former Act should not be construed or applied to the extent that it constitutes "an act of violence."

On the other hand, in an appeal litigation, the burden of proving the legality of the pertinent disposition is against the disposition agency that asserts the legitimacy of the disposition in principle. Thus, the burden of proving that the plaintiff exercised the "school violence" under the former School Violence Prevention Act is against the defendant,

B. In the instant case

1) The grounds for the instant disposition are as follows: (a) with respect to the acts listed in the “Report on Investigation into School Violence (No. B No. 4)” (hereinafter referred to as the “instant act”), written apology and disposition shall be made to the Plaintiff pursuant to Article 17(1)1 of the former Act on the Prevention of School Violence; and (b) the contents stated in the “Report on Investigation into School Violence” do not clearly specify the Plaintiff’s act as a matter of course, and simply calls for the parties’ arguments and statements (the front part of the instant report may be seen to the effect that the Plaintiff intentionally viewed it as ○○○; however, it may be seen that the front part of the instant report was made with the intention that the Plaintiff intentionally viewed it as ○○ in the course of the Plaintiff’s selling). The notification of the decision on the instant disposition (No. 4) does not clearly specify what the Plaintiff committed.

2) First of all, we examine the act that is the object of the instant disposition on the premise that the Plaintiff intentionally deemed her “act when her boomed with her her mack.” In light of the aforementioned factual background and the overall purport of the evidence and arguments, the evidence submitted by the Defendant alone is insufficient to acknowledge that the Plaintiff intentionally caused her buck with her her muck, and there is no other evidence to deem otherwise. Therefore, the instant disposition is unlawful because there is no ground for the instant disposition.

① Investigation into the instant act was conducted at the time when about six months elapsed from the time the instant act was committed. Evidence related to the instant act is direct evidence, and there is no other evidence except the victim’s statement, witness’s statement, witness’s statement, and indirect evidence, and the report prepared the statements as indirect evidence.

② Although the above “Investigation Report on School Violence” states that five witness students stated that they were able to see ○○○ or dried, it is not clear whether the above “the above” portion was intentionally or negligently caused by negligence. Rather, according to each witness’s testimony in the third grade, Kim○, and the fourth grade, as stated in the above report, “the ○○○○○○ was her hand, but her hand was her seated at that her seat,” and “the ○○○○ was her hand her hand, and the her hand was last her hand, and the her hand was last her hand, so it is difficult to view that the Plaintiff’s act was negligent. Furthermore, it is difficult to view that the Plaintiff’s witness statement in the fourth grade, 4 grade, 00, Kim○, and ○○○○’s witness statement (Evidence 2) as well as that of the Plaintiff’s witness statement in the above report was written in favor of the Plaintiff.

③ 정○○의 진술에 관하여도, 정○○과 그 부모의 최초 신고는 ‘배가 나왔다고 놀리고 때렸다’는 것인데, 정○○이 작성한 진술서(을 제2호증)에 의하면 ‘내가 얼굴을 들이댔었는데 원고가 뺨을 때렸다'는 것이어서 상호 불일치하는 부분이 있고, 다른 목격자들의 진술에서 정○○이 얼굴을 들이댔다는 내용은 발견되지 않으며, 원고가 뺨을 때렸다는 부분도 원고의 변소에 비추어 볼 때 고의에 의한 것인지 과실에 의한 것인지 명확하지 않다.

④ Since then, the Plaintiff appears to have put an apology on Ma○○○. However, in 2019, the Plaintiff deemed that the Plaintiff was fluored to Ma○○○ in relation to the “fluoring act”, and there may be cases where the Plaintiff was fluoring on the part of Ma○○○. As such, it is difficult to deem that the Plaintiff’s act was intentional and ratified as intentional.

⑤ In the column of “the intention of investigation report on school violence case”, the phrase “as the statement of South ○○ and witness students, the person in charge of the investigation described above, i.e., the person in charge of the investigation, who laid down his body in order to see the body as the statement of the South ○○ and witness students, sees him as the situation in which she was placed in her name and her name.” Thus, it may be deemed that the person in charge of the investigation did not understand the act of this case as the act in the case of her intentional boom.

(6) On September 3, 2020, the minutes of the Committee for Deliberation on Countermeasures against School Violence (No. 8) held on September 3, 2020, it appears that the act of this case was one of the reasons to regard the act of this case as school violence if the victim was found to have been damaged, although it was not partially predicted, it appears that the act of this case was not intentional.

7) Although ○○○ appears to have a high need for protection as a special student (which appears to be organized and living in the same half as that of the Plaintiff and other regular students) and there is a high need for more careful caution in rejecting the credibility of the statement. However, considering such various circumstances, it is difficult to view that the act of intentional assault by the Plaintiff can be immediately inferred on the sole basis of such circumstances without clear evidence.

3) Next, we examine the act subject to the instant disposition on the premise that “the Plaintiff’s act of contact with her hand by negligence is considered as “the Plaintiff’s act of contact with her hand.”

① In light of the above legal principles, it is reasonable to see that the concept of violence under the Criminal Act is presented in light of other examples, such as injury, confinement, intimidation, abduction, abduction, defamation, coercion, coercion, sexual violence, bullying, cyber bullying, and obscenity and violence information, etc., which are committed against students inside or outside of school, and thus, it is reasonable to see that the concept of violence under the Criminal Act is presented in light of other examples, such as injury, confinement, intimidation, etc., and it is based on the premise of intention. ③ School violence in the form of the above provision includes other acts as well as other acts listed above, but it is difficult to see that school violence is included in all of the following acts, ④ It is also an intentional act of violence. In principle, it is reasonable to see that school violence is not included in the negligence.

Therefore, if the plaintiff's "act subject to the disposition of this case" is deemed to be "an act of contact with Ma○○○'s her kick, it cannot be deemed to constitute school violence." Thus, even in this case, the disposition of this case is unlawful because there is no ground for the disposition of this case.

C. Sub-decision

Ultimately, the disposition of this case does not exist because it is difficult to recognize school violence against the Plaintiff in any case. Thus, without examining further whether the disposition of this case constitutes a deviation or abuse of discretionary power, the disposition of this case should be revoked in an unlawful manner.

5. Conclusion

The plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.

Judges Park Jae-chul

Judges Kim Jong-young

Judges Lee Dong-young

1) The Plaintiff appears to be the fourth year at the time of 2020, and the above content appears to be the fourth year at the time of reporting in 2020.

2) At the time of 2020, it appears that the third year was in the second year at the time of 2019.

3) The fourth year at the time of 2020 seems to have been the third year at the time of 2019.

A person shall be appointed.