(영문) 서울고등법원 2019.5.31.선고 2018나2068422 판결

2. On October 19, 2017, the Defendant confirmed that disciplinary action taken against the Plaintiff on October 19, 2017, including a service order of 200 hours, and publication of a written apology, is invalid.

3. The Defendant is responsible for total costs of the lawsuit between the Plaintiff and the Defendant.

Purport of claim and appeal

The order is as set forth in the text.

Reasons

1. Quotation of the first instance judgment

The reasoning for the court's reasoning for this case is as follows: ① "B" in Section 15 of Section 7 of the judgment of the court of first instance, "B" means "B" in Section 4 of Section 15 of Section 15 of Section 15 of Section 7 of the "B," and "B" as stated in Section 1 of Section 12 of Section 2 of Section 12 of Section 2 of Section 12 of Section 2 of Section 12 of the "B" as stated in Section 2 of Section 420 of the Civil Procedure Act, "B" is as to the plaintiff except for the following Section 2 of Section 420 of the same Act.

2. Parts of the container (determination on whether or not to deviate from or abuse the disciplinary discretion)

A. The parties' assertion

The Plaintiff issued an order to publish a written apology during the instant disciplinary action (hereinafter “instant disclosure order”).

(2) The Defendant asserts that the instant disciplinary action is null and void on the ground that the instant disciplinary action against the Plaintiff was taken at an educational level, as it did not constitute a violation of the Plaintiff’s freedom of conscience, and that the instant disciplinary action, including 200 hours of service order and the instant disclosure and order, was excessive compared to the Plaintiff’s act. As such, the instant disciplinary action constitutes a case of deviation or abuse of discretionary authority. Accordingly, the Defendant asserts that the instant disciplinary action against the Plaintiff was lawful on the ground that the instant disciplinary action against the Plaintiff was taken at an educational level.

B. Determination

The disciplinary action against a student is not naturally excluded from judicial review solely on the ground that it is an educational discretion (see Supreme Court Decision 91Nu2144 delivered on November 22, 191). If the exercise of the right to discipline against a student or the determination of disciplinary action constitutes a deviation or abuse of discretionary power, it shall be deemed unlawful and void.

However, among the disciplinary actions in this case, the disclosure company order exceeds the discretion given to the defendant under the law and is null and void on the grounds as listed below. In addition, as long as the disclosure company order in this case is null and void, the disciplinary action in this case against the plaintiff shall be deemed null and void in accordance with the main sentence of Article 137 of the Civil Act. This is because the defendant has discretion on the determination of disciplinary action, the court can only determine whether the disciplinary action in this case is null and void due to the deviation or abuse of discretion, and it is reasonable that the court can not declare the validity of part of the disciplinary action only exceeding the part that the court recognizes as reasonable, and that the defendant should be allowed to exercise its discretion again, and it cannot be readily concluded that the disclosure company in this case had the defendant known that the disclosure company in this case was null and void.

① Article 13(1) of the Higher Education Act provides that “The head of a school may punish students as prescribed by the Acts and subordinate statutes and school regulations if necessary for education.” However, according to the evidence No. 3, Article 5 of the same Act provides that the types of disciplinary action against students shall be classified into seven days to one month, a student’s limited occupation, a student’s limited occupation, a student’s limited occupation, a student’s limited occupation, and a student’s limited occupation, and a student’s limited occupation, a student’s limited occupation, and a student’s limited occupation, and a student’s limited occupation, a student’s limited occupation, a student’s limited occupation, and a member’s limited occupation, and a member’s limited occupation, and a sexual harassment review committee’s limited occupation, a member’s limited occupation, a member’s limited occupation, and a sexual harassment review committee’s limited occupation, and a member’s limited occupation, a member’s limited occupation, and a member’s limited occupation, a sexual harassment and sexual harassment review committee’s limited occupation and sexual harassment.

Article 17 (1) 1 and 17 (4) of the Act on the Prevention of and Countermeasures against School Violence provides that "the head of a school may take measures against an aggressor student in writing against an aggressor student if he/she requests the Autonomous Committee on Countermeasures against School Violence or it is deemed that the school violence is urgent to guide the aggressor student, although the above provision does not include the above provision, the disclosure company and the order of this case cannot be the basis for the disclosure company and the order of this case, and if the above provision is interpreted to include disciplinary action such as the disclosure company and the order of this case, the above provision is invalid because it excessively limits the freedom of conscience in violation of the principle of proportionality as follows. Thus, the disclosure company and the order of this case are also invalid. And Article 17 (1) 1 and 17 (4) of the Act on the Prevention of and Countermeasures against School Violence provides that "the head of a school may take measures against the aggressor student in writing against the aggressor student if there is a request by the Committee on Countermeasures against School Violence or if it is interpreted that the above provision allows the written company to issue.

② The fundamental rights under the Constitution are primarily a defensive right to protect an individual’s free sphere from an infringement of public authority, but on the other hand, embodying objective value order, which is a basic decision of the Constitution, and affect all legal areas including private law. As such, private legal relations between private persons should also be governed in compliance with the fundamental rights provisions under the Constitution.

However, Articles 2 and 103 of the Civil Act, which stipulate the relevant legal norms or the general principles under the private law, except for exceptional cases that can be applied directly to the private law relations by their nature, form the contents and indirectly affect the private law relations (see, e.g., Supreme Court en banc Decision 2008Da38288, Apr. 22, 2010; Supreme Court Decision 2017Du38560, Sept. 13, 2018). Article 19 of the Constitution of the Republic of Korea guarantees the freedom of conscience as one of the fundamental rights. Such conscience includes not only world officers, human beings, care, and faith, but also value and ethical judgment in the first instance related to the formation of an individual’s personality. Accordingly, the freedom of conscience should be widely admitted to the freedom of flight or that it may not be subject to compulsory disclosure or decision by the State that is disadvantageous to the person subject to disciplinary action, such as non-unconstitutional or non-judicial decision of the State, but also one of the State’s own decision that may not be made.

is against the prohibition of coercion of acts contrary to conscience, which are derived from implied freedom; and

It limits the freedom of conscience, which is one of the mental fundamental rights that the Constitution intends to protect.

Furthermore, even though the publication order is based on educational purpose to recover the victim's damage and urge the victim to reflect the victim who is the perpetrator, it may be an appropriate means to achieve that purpose, it is highly serious that it compels the victim to distort, cut off, or set up his conscience, and thus, is highly likely to limit the freedom of conscience. Even if the publication order does not include a written apology, it may sufficiently put a means to achieve the objectives of the action, such as inducing the victim to reflect against the victim and recovering the victim's damage, and thus, it violates the principle of minimum infringement. Accordingly, the disclosure order and order against the plaintiff who does not believe that his act constitutes a disciplinary cause, and thus, violates the principle of proportionality, thus infringing on the freedom of conscience, and thus, it cannot be recognized as the necessity of education beyond the scope of discretion under Article 13 (1) of the Higher Education Act, which provides for the requirements for disciplinary action against students and limits of discretion under Article 13 (1) of the Higher Education Act.

3. Conclusion

Thus, the plaintiff's claim shall be accepted as it is reasonable. Since the part concerning the plaintiff among the judgment of the court of first instance concerning the plaintiff is unfair with different conclusions, it is so decided as per Disposition.