2019Guhap5223 Action for revocation, such as forced transfer, etc.

1. A;

Since it is a minor, the legal representative B and C

2. D;

Since it is a minor, the legal representative E

3. F;

Since it is a minor, the legal representative G, the mother H

Seoul High Court Decision 200Na14888 decided May 21, 200

Principals of Middle Schools

Attorney Kim Jong-hee, Counsel for the defendant-appellant

March 17, 2020

2020,31 March 31

1. It is confirmed that the Defendant’s transfer disposition against Plaintiff F does not exist.

2. The plaintiff A and D's claims are all dismissed.

3. Of the costs of lawsuit, the part arising between the Plaintiff F and the Defendant is borne by each party, and the part arising between the Plaintiff A, D and the Defendant is borne by the Plaintiff A and D.

The transfer disposition taken by the Plaintiff A and D against the Plaintiff A and D on October 17, 2019 shall be revoked, respectively. Plaintiff F

The primary claim is as set forth in paragraph (1).

Preliminary Claim: The defendant confirms that a transfer disposition made against the plaintiff F is invalid.

1. Details of the disposition;

A. Reporting school violence in the instant case

The plaintiffs and J (hereinafter referred to as "victim student") were enrolled in the second grade of middle school located in Jeju-si in the year of 2018.

On June 18, 2018, ○○ received a report from seven students, including the Plaintiff, who exercised school violence to a victim student on June 18, 2018. Of the content of the report, matters related to the Plaintiffs are as follows (hereinafter “instant school violence”).

On June 1, 2018, Plaintiff A known that he had been transferred to K Middle School on June 1, 2018 to L of the first middle school student who had been aware of before transfer, the victim her gender was prompt by telephone to others. The victim her male and her her her her her her her her her her her her her her her her her. her her her her her was

② On June 14, 2018, at the front and rear convenience point, Plaintiff A disseminated false facts to other female students, as seen above ①. Plaintiff F, who was next to Plaintiff A, did not have been aware of other female students, and explained the details that Plaintiff A told. On June 15, 2018, Plaintiff A told Ma who attended with the victim student, referring to the false facts of the same content as above, and was good for the victim student to be oriented with the victim student. Plaintiff D and N used 2 times for 2018, 15, and 200, 15, 2000 and 100, 2000, 200, 15,000 and 5,000,000 male students, and 1,000,000,000,000 male students and 1,000,000,000 male students and 1,000,000.

(b) Measures taken by the Autonomous Committee on Countermeasures against School Violence;

On June 26, 2018, the Autonomous Committee on Countermeasures against School Violence (hereinafter referred to as the "Autonomous Committee") held meetings concerning the instant school violence, and the victim students and their mothers, and the Plaintiffs, N, R, S, T, and their guardians identified as aggressor students were present.

The autonomous committee shall take measures of 10 days of completion of the special education course for the plaintiffs and N, and 5 hours of special education for the guardian at the above meeting, such as R, S, and T, respectively.

the decision was made.

On June 28, 2018, the defendant notified the plaintiffs of the result of the resolution of the above autonomous committee. The measures taken by the regional committee for countermeasures against school violence.

On July 12, 2018, 2018, the ○○ victim argued to the effect that the 'victims' did not seem to be reflective and are causing damage after the resolution of the autonomous committee, and filed a petition for reexamination with the Local Committee for Countermeasures against Violence in Jeju Special Self-Governing Province (hereinafter referred to as the "Local Committee") on July 12, 2018.

On August 8, 2018, the regional committee held a meeting, and the students and their guardians, including the victim students, their mothers, and the plaintiffs identified as aggressor students, were present. At the above meeting, the discussion on the investigation of the victim students' arguments that still appeal the "influences and grievances caused thereby" even after the autonomous committee was held, and the discussion on the countermeasures related thereto was mainly conducted. At the above meeting, the regional committee revoked the part regarding the plaintiffs among the resolution of the autonomous committee and resolved on the measures of 5-hour education for the plaintiffs.

D. The situation of Plaintiff F

The Plaintiff F transferred from the middle school on February 7, 2019 to the second-year U.S. in Kimhae-si on February 8, 2019.

○ The Plaintiff F graduated from U Middle School on February 7, 2020.

Among the school records of Plaintiff F’s school life detailed records (hereinafter referred to as “school records”), “A special engineer’s column is indicated as “A person subject to measures to change schools pursuant to Article 17(1)8 of the Act on the Prevention of and Countermeasures against Violence in Schools ( June 28, 2018).”

E. On October 17, 2019, the Defendant sent a transfer disposition to Plaintiff A and D according to the regional committee resolution to Plaintiff A and D, and notified Plaintiff A to transfer to V middle schools, and Plaintiff D to W middle schools (hereinafter “instant disposition”).

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 7, 13, Eul evidence Nos. 1, 2, 5 and 9, the purport of the whole pleadings

2. Relevant statutes;

It is as shown in the attached Form.

3. Determination of the defendant's defense against the plaintiff F's lawsuit

The defendant, regardless of the defendant's disposition, has already been transferred to another school according to the change of residence. Thus, the defendant does not have any interest to seek confirmation of the absence or invalidity of the transfer disposition against the defendant, and therefore, the above plaintiff's lawsuit is unlawful.

First of all, the fact that Plaintiff F transferred to U.S. secondary school located in Kimhae-si on February 8, 2019 according to his residence, and the fact that the said Plaintiff graduated from the middle school is as seen earlier. Therefore, it cannot be deemed that the Defendant’s obligation related to the transfer to the Plaintiff may still exist, depending on the existence or validity of the disposition of transfer to the said Plaintiff.

However, in full view of the following circumstances revealed by the facts of recognition and the provisions of the relevant statutes, the Plaintiff F still has concerns or risks arising from the description of the transfer measure remaining in school life records, such as the appearance of the Defendant’s transfer disposition, and thus, the Plaintiff F still has concerns over its legal status. As such, the Plaintiff need to remove such external appearance in order to eliminate anxiety or risks in his/her legal status, it is deemed that there is a legal interest to seek confirmation of the non-existence or invalidity of the transfer disposition against the Defendant. Accordingly, the Defendant’s defense on this issue is

(1) A school of higher level (including high schools as well as universities and colleges subject to the Higher Education Act pursuant to Article 21(4) of the Enforcement Rule of the Elementary and Secondary Education Act) recognizes a wide range of discretion when it establishes the standards for selection of new students. Accordingly, it is possible to request the submission of school life records at middle schools and accordingly the said Plaintiff may suffer disadvantages

(2) Even if it is not necessarily required to submit a school life record for a middle school, the above plaintiff may submit school life record for himself/herself in the course of entrance to a higher school, various competitions, selection of scholarship students, etc.

③ In light of the fact that the Plaintiff has opened the possibility of early promotion and early graduation pursuant to Article 22(3)1 of the Enforcement Rule of the Elementary and Secondary Education Act, the part on the measures to transfer remaining in the above Plaintiff’s school life record may be deleted at the end of two years from the date of graduation from a middle school, it is difficult to conclude that the above Plaintiff’s entry does not need to delete the above part.

4. Judgment on Plaintiff F’s primary claim

In principle, an administrative agency shall take measures in writing: Provided, That if it is necessary to process a case promptly or minor, it may take measures orally or in other ways, and the administrative agency and the person in charge of the disposition shall enter the position, name, and contact information of the administrative agency (Article 24 of the Administrative Procedures Act). In addition, when an administrative agency takes measures, it shall notify the party concerned of whether an administrative appeal or administrative litigation is possible, whether the party concerned can file an appeal or file a lawsuit, the procedure for filing a request and the deadline for filing a request, and other necessary matters (Article 26 of the same Act). In addition, in accordance with Articles 17 and 17-2 of the former Act on the Prevention of and Countermeasures against Violence in Schools (amended by Act No. 1641, Aug. 20, 2019; hereinafter referred to as the "former Act on the Prevention of School Violence"), and Article 24 of the former Enforcement Decree of the Act on the Prevention of and Countermeasures against Violence in Schools (amended by Presidential Decree No. 2950, Jul. 2, 2019, 2019).

However, there is no evidence to acknowledge that the Defendant notified the Plaintiff F of the transfer disposition to the Plaintiff by document or other means, the date of the transfer, the reason and ground for the transfer, the appeal, and the method of objection (it seems that the said Plaintiff did not make the said notification because the said Plaintiff voluntarily made the transfer to Umiddle School before giving notice of the transfer disposition according to the resolution of the local committee).

Thus, the defendant's transfer disposition against the plaintiff F does not exist, and there is a benefit to seek confirmation that the above transfer disposition does not exist in the above plaintiff as seen in the above 3.

5. Determination as to each claim of the plaintiff A and D

A. Summary of the plaintiff A and D's assertion

Although the plaintiffs' act of being classified as school violence is limited to one time, the autonomous committee and the regional committee did not consider the degree of reconciliation with victim students, the possibility of leading the plaintiffs, etc. on the basis of unfair fact-finding, and decided the most harsh measures as stipulated by the law against the plaintiffs in the process of compulsory education. The defendant's disposition of this case according to the above resolution must be revoked because it deviates from discretion or abused it and is unlawful.

B. Determination

1) In light of the following circumstances in relation to the fact-finding of the instant act of school violence, it is difficult to deem that there was any error in recognizing the instant act of school violence by the autonomous committee or regional committee.

① All aggressor students including the Plaintiffs appeared at the autonomous committee and agreed that the content of the instant school violence reported by the victim student was true.

(2) There is no evidence to prove that the members of the autonomous committee forcedly misleads and misleads the aggressor students, and otherwise it is difficult to find any evidence to find that the autonomous committee conducted an unfair fact-finding or conducted a false fact-finding.

(3) An aggressor student and his/her guardian did not dispute the propriety of fact-finding of the autonomous committee at the local committee.

2) In light of the following circumstances with regard to ascertaining the degree of reflectivity or reconciliation of aggressor students, it is difficult to deem that a regional commission has any error to determine that the degree of reflectivity of aggressor students or the degree of compromise with victim students is weak.

(1) The aggressor students argued that the autonomous committee could not attempt to compromise with the victim student according to the direction of the teacher in charge of the autonomous committee, but the teacher in charge was just in the situation where the teacher in charge prepared a letter of apology to the victim student and then sent it to the victim student. Nevertheless, the aggressor students did not prepare any apology.

② The victim student asserts that “a local committee has no change in the attitude of the aggressor student even after the resolution of the self-governing committee. Although the aggressor student sent a letter of apology, it does not contain the content of the true apology, it is deemed that the toilet in the toilet does not run, and that it is likely to run it, or that it is created by throde, etc.”, the victim student presented a screen to the local committee that he/she would face insulting message, such as obsess that he/she received anonymously in the social network service (SNS) before and after the autonomous committee.

(3) Even though the local committee asserts that there was no verbal violence or cyber violence, etc. against the victim student after the local committee's autonomous committee, the perpetrator did not answer questions of the local committee committee member.

④ A middle school violence teacher X stated that a regional committee has a description of the situation of several students to support the statements of a victim student after the Local Autonomy Committee, and that the content of the statement is that the aggressor student has expressed his/her desire to be or will be the same as that of the victim student.

3) Selection of measures against aggressor students

Considering the following circumstances, which are the factors for determination prescribed in Article 19 of the former Enforcement Decree, even if the regional committee decided to take the most severe measure that can be granted to the plaintiffs who are the main agents of the act of school violence in this case, it is difficult to see that there was any error.

(1) The act of school violence in this case is a serious and intentional act that causes damage to a victim's reputation that makes it difficult to recover from his or her personality easily, and the degree of such damage is very serious and intentional.

② The instant act of school violence was committed several times between about 15 days, and the nature of defamation itself, which does not immediately stop from the harm, and its sustainability is reasonable in light of the attitude of the aggressor students after the autonomous committee, on the ground that only the harmful act was committed.

③ Considering the aforementioned factors, it would be difficult to expect any reflection or compromise with the victim student to the aggressor student.

④ In light of the seriousness, sustainability, and intentional intent of the instant act of school violence, while the degree of reflection of the aggressor student, and the degree of reconciliation with the victim student, the above characteristics are very low, the public notice of the detailed criteria applicable to each measure of the aggressor student of school violence [Attachment] of the measure of the aggressor student of school

Even if the detailed criteria for separate application are converted to the numerical value presented, it seems that the above criteria are not violated.

4) As to the delay of the instant disposition

Plaintiff A and D alleged that the instant disposition was taken on October 17, 2019 after the lapse of at least one year from August 8, 2018, when the Local Committee passed a resolution, and that the instant disposition was lost in light of the following circumstances, the foregoing assertion is without merit.

(1) Unlike the determination of the time limit for a disposition by the head of a school upon request by an autonomous committee under Article 17(6) of the former School Violence Prevention Act, no provision exists for the time limit for a disposition by the head of a school, if requested by a regional committee.

② According to the purport of the evidence Nos. 7 and 9 and the entire pleadings, the above plaintiffs requested the suspension of the transfer disposition on the part of the defendant, or requested the local committee’s resolution and the defendant’s measure (the head of education to the plaintiffs) to suspend the execution of the disposition of this case. Accordingly, the defendant suspended the disposition of this case by complying with the above plaintiffs’ response to the resolution of the regional committee, and it seems that the decision of rejection against the above plaintiffs against the defendant was made (the defendant’s request for the transfer assignment made by the head of education office cannot be deemed an administrative disposition subject to appeal litigation). Even if the disposition of this case was postponed for a considerable period of time, it is entirely consistent with the above plaintiffs’ request, and it is difficult to view that the above plaintiffs were disadvantageous to the above plaintiffs.

③ Special circumstances exist to mitigate the measure against the above plaintiffs while the measure of this case is suspended.

There is no evidence to prove that the circumstances have occurred.

5) Other arguments

① Plaintiff A and D asserted to the effect that the organization of the committee is unlawful or unjustifiable due to the existence of a victim student among the members of the local committee. However, there is no evidence on such circumstance.

② Plaintiff A asserted to the effect that it was inevitable to commit the instant act of school violence according to the threat and end of L, but L was not subject to any measure related to the instant act, and thus, the instant disposition is in violation of the principle of equality. However, there is no evidence to support the instant assertion. In light of the intent, activeness, and the degree of reflectivity that peeped in the content of the instant act of school violence, the instant assertion is difficult to accept. Even if the instant act of L appearing in the instant assertion is certain degree, it is only a separate act of school violence committed by Plaintiff A as an aggressor student, and therefore it is difficult to directly apply the principle of equality that should be pursued within the said procedure.

③ Plaintiff A asserts to the effect that the above resolution was unlawful because “the circumstances where the victim student was supposed well before the act of school violence in the future” did not take into account the resolution of the autonomous committee or the regional committee before the act of school violence in the future. However, it is obvious that such circumstances cannot justify the act of school violence in the instant case. Therefore, the above argument itself is without merit.

As seen above, the grounds for the plaintiffs' assertion that the disposition of this case made by the defendant against the plaintiffs A and D was in excess of discretion or abuse of discretion are not recognized, but there is no evidence to find any illegality in the above disposition.

6. Conclusion

Therefore, the plaintiff F's primary claim is justified (as it is the ground for accepting the primary claim, it is not judged as to the conjunctive claim), the plaintiff F's primary claim is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, Kim Gung-tae

Judges Noh Jeong-soo

Judges Seo Young-woo