In a case where the principal of a high school held a committee for the autonomy of countermeasures against school violence and deliberated on and resolved the agenda that “A was assaulted against the victim Byung at the seaside of the school of this school” and ordered Eul to suspend attendance for five days, to complete special education for ten hours, and to provide four hours of special education for guardians according to the result of the committee’s resolution, the case holding that the above autonomous committee’s composition of the committee is reasonable inasmuch as the selection of members of the autonomous committee and the procedure for the selection of the principal of the resolution is null and void, as long as the defects violating the Acts and subordinate statutes concerning the prevention and countermeasures against school violence are significant and apparent

A high school head held a committee for self-governing measures against school violence (hereinafter referred to as "self-governing committee") to deliberate and resolve on the agenda that "B has committed violence against students Byung at the waters in front of the school," and issued a disposition to order B to suspend attendance for five days, to complete special education for ten hours, and to order B to conduct special education for four hours for guardians according to the result of the resolution by the autonomous committee.

An autonomous committee having the right to request measures against school violence shall be democratic legitimacy from school members in accordance with the procedure prescribed by the law, and if the autonomous committee does not have an opportunity to express and deliberate democratic opinions or to intervene in the process leading to the decision to take measures, the request of the autonomous committee and the measures of the head of the school accordingly are unlawful. In full view of the fact that some of the parents attend the school meeting without any guidance concerning the official guidance on the principal of the school while holding the school, the agenda for meetings, and the election of the members of the autonomous committee, the members of the parents council or the members of the members of the members of the autonomous committee present at the meeting of the parents council without any instruction, and the fact that the members of the parents council did not provide information about the school violence in advance, and accordingly, the members of the parents council elected at the meeting of the parents did not have an opportunity to express and deliberate on their democratic intentions, and therefore, the organization of the autonomous committee pursuant to the above procedure cannot be deemed as a "representative of the parents at the plenary meeting" scheduled by the law, and as long as the autonomous committee’s selection and invalid procedure is found unlawful.

Articles 12(1), 13(1), and 17(1) and (6) of the Act on the Prevention of and Countermeasures against School Violence; Article 14(1)3 of the Enforcement Decree of the Act on the Prevention of and Countermeasures against School Violence;

Plaintiff (Non-party 1 with parental authority)

○○○○ High School

January 30, 2019

1. On April 10, 2017, the Defendant’s suspension of attendance at the Plaintiff on April 10, 2017, completion of special education, and disposition of special education for guardians is invalid.

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

The same shall apply to the order.

1. Details of the disposition;

A. On April 7, 2017, the Defendant held an autonomous committee on countermeasures against school violence (hereinafter “instant committee”) and deliberated and resolved on the agenda “the Plaintiff committed assault against Nonparty 2 to the victim Nonparty 2 on the seaside of ○○○ High School (hereinafter “school”) on March 23, 2017.”

B. On April 10, 2017, the Defendant issued a disposition to order the Plaintiff to suspend attendance five days of attendance, ten hours of special education, and four hours of special education for his/her guardian (hereinafter “instant disposition”).

[Ground of recognition] Unsatisfy, entry of Gap evidence 6, purport of whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The defendant did not comply with the legitimate formation procedures at the time of the formation of the committee of this case. The resolution of the committee of this case is null and void, and the disposition of this case is null and void, thus seeking confirmation.

B. Determination

(1) The main text of Article 12(1) of the Act on the Prevention of and Countermeasures against School Violence (hereinafter “School Violence Prevention Act”) provides that “A school autonomous committee shall be established to deliberate on matters related to the prevention of and countermeasures against school violence.” Article 13(1) of the same Act provides that “The 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 the parents’ plenary meeting, as prescribed by Presidential Decree: Provided, That where it is difficult to elect representatives of parents at the parents plenary meeting, a representative of parents may be elected at the parents’ plenary meeting consisting of representatives of classes.” Article 14(1)3 of the Enforcement Decree of the School Violence Prevention and Countermeasures Act provides that a representative of parents elected as above shall be appointed or commissioned as members of the autonomous committee. In addition, Article 17 of the School Violence Prevention Act provides that the head of the school shall take any measure falling under any of the subparagraphs (1) through (4) of the same paragraph) of the same Article.

As such, 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 explicitly stipulates the procedures for the organization of the autonomous committee and the members of the autonomous committee shall be prevented from 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, juveniles cannot avoid disputes arising between their members in a social life, and juveniles cannot yet be aware of the dispute resolution pursuant to the legal order, even if they are in violation of the law and order, and thus, in taking measures against the Act and subordinate statutes, they shall be interpreted to have the educational direction that contributes to the desirable growth of the students concerned.

Considering the legislative purport of the relevant laws and regulations, considering the impact of measures on the future of the relevant student on school violence, the autonomous committee with the authority to request measures against school violence has been formed in accordance with the procedures prescribed by the laws and regulations and has democratic legitimacy from school members. If the autonomous committee does not constitute a legitimate procedure or there is an error of law affecting the legitimacy of the decision in the process leading to the decision of the request for measures, the request by the autonomous committee and the measures following the request by the head of the school are unlawful.

(2) According to the overall purport of the statement and arguments about the instant case, the Health Team, Gap evidence Nos. 4, 7, and 8 were held (the defendant's side did not keep any material about the holding of the parents' meeting). When the school parents held the parent's meeting in 2017, they merely consulted on the selection of the student's right to participate in the restaurant itself through Mesens, and some of the parents did not receive any instruction about the defendant's official guidance, agenda items, and election of the members of the instant committee. At the same place, the parents' meeting or the members of the instant committee did not have any desire to participate in the meeting and decided to take the form of changing the number of the students' right to participate in the meeting (the defendant did not have any material about the holding of the parent's meeting). Ultimately, the parents did not provide the information properly before the parents' meeting (the defendant did not have any opportunity to present and take advantage of the democratic will, and the election of parents at the parents' meeting cannot be deemed to be " lawfully elected at the parents' meeting."

In a lawsuit seeking the invalidation of an administrative disposition, the Ministry of Health and Welfare (see, e.g., Supreme Court Decision 9Du11851, Mar. 23, 2000) has the responsibility to assert and prove that the defects existing in the administrative disposition are significant and apparent, and thus, the composition of the committee in accordance with such procedure is serious in violation of the school violence prevention Acts and subordinate statutes. In light of the relevant Acts and subordinate statutes and purport as seen earlier, it is obvious that the number of members of the committee in question cannot be deemed to have been elected by the entire will of parents.

(3) Therefore, insofar as the selection of members representing parents of the instant commission is null and void, it is reasonable to deem the instant disposition made on the premise that the instant commission was a legitimate resolution.

3. Conclusion

If so, the plaintiff's claim shall be accepted with due cause, and it is so decided as per Disposition.

Judges Kim Jong-won