(영문) 대구지방법원 2020.1.16. 선고 2019구합23700 판결

1. On July 3, 2019, the Defendant’s disposition of contact with the Plaintiff and reported or accused students, prohibition of intimidation and retaliation against the Plaintiff, 5 hours in school service, 4 hours in special education (We Center), and 4 hours in special education for guardians (We Center) shall be revoked.

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

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. The Plaintiff and Han-○○○ are students attending the first half of the sixth grade of the A Elementary School.

B. On June 24, 2019, the mother of Han○○ reported school violence on the ground that the Plaintiff reported school violence to Han○○○.

C. On July 1, 2019, the Autonomous Committee on Countermeasures against School Violence at A (hereinafter referred to as “the instant autonomous committee”) attended and convened a meeting by six (6) members, among seven (7) members of the total number of seven (11:00), among whom five (5) members, other than one (1) members, who filed an application for challenge by Han○○○○, decided to take measures against the Plaintiff such as contact with, intimidation and retaliation against, and the reported and accused students pursuant to Article 17(1)2, 3, (3), and (9) of the Act on the Prevention of and Countermeasures against Violence at School (hereinafter referred to as “School Violence Prevention Act”), pursuant to Article 17(1)2, 3, and (9) of the Act on the Prevention of and Countermeasures against Violence at School (hereinafter referred to as “School Violence Prevention Act”).

D. On July 3, 2019, the Defendant taken the same measure as the measure that was decided by the instant autonomous committee with the following grounds (hereinafter “instant measure”).

From April 4, 199 to April 5, 199, the Plaintiff unilaterally coercioned the Han○○○ on the part of the Plaintiff, thereby causing mental damage. From April 4, 199 to April 5, 199, the Plaintiff expressed the Plaintiff’s desire to her hand over to Han○○○. When the Plaintiff read a waiting line at the rest room from April 4, 199 to April 5, 19, the Plaintiff her cell phone intrudes Han○○, etc., with the Plaintiff’s cell phone. When the Plaintiff took hand from the rest room before eating food, the Plaintiff ○○ was protruding one-third water.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1, 2, and 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Since procedural defects are not commissioned by the members representing parents of the instant autonomous committee pursuant to lawful procedures under Article 13(1) of the School Violence Prevention Act, the organization of the said autonomous committee is unlawful. Thus, the instant disposition taken based on the resolution of the illegal autonomous committee is also unlawful.

2) Non-existence of grounds for disposition

Since the Plaintiff’s act constituting the cause of the instant disposition does not constitute either an act that the Plaintiff did not have the Plaintiff nor a school violence as provided by the School Violence Prevention Act, the said disposition is unlawful as it does not exist.

(iii) deviation from and abuse of discretionary power;

Even if there are grounds for the instant disposition, there is an error of law that deviates from and abused discretionary power by applying the criteria of the notice of the detailed criteria applicable to each measure against the aggressor student in school violence.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Facts of recognition

The following facts are not disputed between the parties, or may be recognized by comprehensively taking account of the evidence as mentioned above, Gap evidence as mentioned in subparagraphs 4, 5, and Eul evidence as mentioned in subparagraphs 1 through 5, and the whole purport of oral proceedings:

1) On March 19, 2018, the Defendant planned the operation of the “A Education Communication and Promotion Day” event even in March 19, 2018, and sent to all parents, on March 20, 2018, a family correspondence statement on the title “A Education Communication and Promotion Day for the Creation of a happy School.” The main contents are as follows.

/Temporary: March 28, 2018 (number)

A person shall be appointed.

2) On March 23, 2018, the Defendant informed all parents of the instant autonomous committee of the election of the members representing parents through the family communications network, and publicly notified the parents of the instant autonomous committee to submit an application by March 26, 2019, with the intent to act as the members representing parents.

1. Period of activity: The number of students who are scheduled to attend the principal school for at least two years from March 28, 2018 to March 27, 2020: The number of students who are scheduled to attend the principal school for at least two years: Six persons (where the number of applicants exceeds, the total election at the general meeting of parents shall be elected): The issue of whether the members of parents are elected shall be notified individually, and the details of the meeting shall be kept confidential;

3) The six parents filed an application for the members representing parents of the instant autonomous committee, and on March 28, 2018, the said parents were elected as the members representing parents of the instant autonomous committee at the event of the “A Education Communication and Achievement Day held on March 28, 2018.” In relation to the said election, the content of the “members representing parents” presented by the Defendant is as follows.

A person shall be appointed.

(d) Markets:

1) Relevant legal principles

The main text of Article 12(1) of the School Violence Prevention Act provides that "A school shall have an autonomous committee to deliberate on matters related to the prevention of and countermeasures against school violence." Article 13(1) provides that "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 as representatives of parents directly elected at a parents meeting, as prescribed by Presidential Decree: Provided, That where it is impracticable to elect representatives of parents at a parents meeting, a representative of parents may be elected at a parents meeting comprised of representatives of each class." In addition, Article 14(1) of the Enforcement Decree of the School Violence Prevention Act provides that "the members of the autonomous committee shall be appointed or commissioned by the head of the relevant school from among representatives of parents elected pursuant to Article 13(1) of the School Violence Prevention Act."

Meanwhile, the Act on the Prevention of School Violence stipulates that measures against aggressor students shall be taken by the autonomous committee upon the request of the autonomous committee, and the explicit provision of the procedure for the organization thereof is to prevent school violence so that juveniles may respect the other party and grow into a healthy and happy citizen by freely receiving education in a peaceful educational environment at the same time. However, in a social life, juveniles cannot avoid any dispute between their members. Since juveniles cannot be aware of the dispute resolution in accordance with the legal order, and even if they are engaged in acts contrary to the law, they should be interpreted as aiming at the educational direction that contributes to the desirable growth of the students concerned, even if they are able to join the school.

Considering the purport of the Act on the Prevention of School Violence and the impact of the measures on the student’s future, democratic legitimacy in the formation of the autonomous committee with authority to request the measures against school violence is very important. Therefore, the measures under the Act on the Prevention of School Violence taken by a resolution adopted by the autonomous committee without complying with such procedures are deemed unlawful. Furthermore, the burden of proof exists for the defendant to prove that the autonomous committee has been duly constituted pursuant to Article 13(1) of the Act.

2) Whether the organization of the instant autonomous committee was unlawful

In light of the following circumstances, the evidence revealed prior to the above facts, Gap evidence Nos. 11, 12, 15, and Eul evidence Nos. 11 and 12 (including each number), and the overall purport of the arguments as a whole, the evidence presented by the defendant alone is insufficient to recognize that the members of the parents constituting the autonomous committee of this case are representatives of parents lawfully commissioned as prescribed by Article 13(1) of the School Violence Prevention Act, and there is no other evidence to prove that the above members of the parents were legally commissioned.

A) In light of the family communications text (No. 2018) that the Defendant sent to all parents on March 20, 2018, the “Guidance on the Day of Education Communication and Achievement” (No. 2) called “A Education Communication and Achievement Day” (No. 2018), there is only information on ① registration and guidance, ② disclosure of high school and low school class classes, ③ public announcement of performance class classes, ③ the head of the school, personnel affairs, and introduction of new teachers, public announcement of school performance records in 2017, ④ operation and evaluation of school curriculum in 2018, ④ operation of school curriculum in 2018, ④ guidance of school year curriculum in 2018, children education consultation, and various committees (parents, green mothers, etc.) organizations, and there is no information about whether parents meetings are held or any other public notice posted on the A Elementary School website or about the present situation of the instant registration of the electoral committee, public announcement related to the election of students, etc., and the election of members.

B) According to the “Guidance on Election of Members of the Autonomous Committee on Countermeasures against School Violence,” which the Defendant sent to all parents on March 23, 2018, the “Guidance on Selection of Members of the Autonomous Committee on School Violence,” only stipulates that the number of members of the instant autonomous committee shall be six, but does not include specific matters, such as whether or not to hold a general meeting of parents, the date or time of the general meeting of parents, and the method of election, if the number of applicants exceeds the number of applicants. Furthermore, in light of the language and purport of the school violence prevention legislation, the procedures for election of the members of the Autonomous Committee on School Violence shall be conducted at the general meeting of parents unless they fall under the proviso of Article 13(1) of the School Violence Prevention Act, and the number of members to be elected shall not be deemed to have omitted the procedures for election at the general meeting of parents or by any other means than that of the above election (at least six of the aforementioned cases, the application for election of the students did not exceed the number as seen earlier).

C) The Defendant asserts that the instant autonomous committee was directly elected at the meeting of parents held at the time of the 'A Education Communications and Official Day'. However, the Defendant failed to submit direct evidence on the above alleged facts, such as the minutes of the parents meeting and the notice of election of the members for parents; ② whether parents exercised their voting rights on the basis of whether parents exercised their voting rights; ③ the number of parents who agreed to the election of parents and the members for parents at the parents meeting, and whether parents were elected at the 'A Education Communications' meeting; ③ the election of the members for parents of this case was made at the 14:50 days after the above event; and ④ the Defendant’s election of the members for parents of this case was made at the 100-day class and school year research room; ④ the Defendant’s election of the members for parents of this case cannot be seen as being made at the 6th anniversary of the voting day of the parents meeting, and it is difficult for the Defendant to directly select and announce the above school year and the number of the members of the parents.

D) Even when the Defendant approved on March 19, 2018, 2018, '2018' attached to the '2018-2018-2018-201-201-20000-2000-2000-2000-2000-2000-2000-2000-2000-20000-2000-20000-20000-2000-20000-2000-20000-20000-20000-2000-2000-2000-2000-20000-2000-2000-2000-2000-2000-200-3000-2000).

3) Conclusion

As can be seen, so long as the organization of the above autonomous committee is unlawful as the members representing parents who constitute the instant autonomous committee cannot be deemed to have been lawfully commissioned as prescribed by Article 13(1) of the School Violence Prevention Act, the instant disposition taken in accordance with the resolution of the said autonomous committee shall also be revoked as unlawful (the procedural defect of the organization of the autonomous committee exists in the disposition of the instant case). Upon the Plaintiff’s assertion, the remaining argument shall not be determined as to the remainder

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.