2018Guhap82403 Action Demanding the revocation of a change of schools

A

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

Law Firm at present, Counsel for defendant-appellant

[Defendant-Appellant]

D High School Superintendent

April 4, 2019

June 13, 2019

1. The Defendant’s transfer disposition against the Plaintiff on October 15, 2018 is 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. The Plaintiff, E, and F were enrolled in the third year of D High School at 2018.

B. On October 10, 2018, the Autonomous Committee on Countermeasures against School Violence at D High Schools (hereinafter “the instant autonomous committee”) held a meeting to deliberate on the guidance and education measures of the Plaintiff, etc., and requested the Defendant to take the following measures pursuant to Articles 16 and 17 of the Act on the Prevention of and Countermeasures against School Violence (hereinafter “School Violence Prevention Act”).

A person shall be appointed.

C. Accordingly, the Defendant taken the aforementioned measures against the Plaintiff on October 15, 2018 (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 4, and 6, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons, and thus should be revoked.

1) procedural defect

The members representing parents of the instant autonomous committee were not elected according to the procedures prescribed in Article 13(1) of the School Violence Prevention Act. As such, the instant disposition was conducted upon the request of the instant autonomous committee to take measures unlawful. As such, the instant autonomous committee violated Article 17(5) of the School Violence Prevention Act without following appropriate procedures, such as granting the Plaintiff and the guardian an opportunity to state their opinion.

2) Material defect

Although the instant autonomous committee requested the Defendant to take the aforementioned measures by deeming that the Plaintiff’s continued school violence was “highly high,” the Plaintiff did not continuously bullying E, etc. Even if not, the instant disposition was in violation of the principle of equity and proportionality, and was in violation of the principle of proportionality.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

A) Relevant legal principles

The main text of Article 12(1) of the School Violence Prevention Act provides that "Autonomous Committees for Countermeasures against School Violence (hereinafter referred to as "Autonomous Committees") shall be established in schools 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 Committees 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 plenary meeting of parents, as prescribed by Presidential Decree: Provided, That where it is impracticable to elect representatives of parents at the plenary meeting of parents, they may be commissioned as representatives of parents elected at the plenary meeting of parents." Article 14(1) of the Enforcement Decree of the School Violence Prevention and Countermeasures Act provides that "the head of the relevant school shall appoint or commission members of the autonomous committee from among the following persons." Article 13(1) of the same Act provides that "the head of the relevant school shall select representatives of parents pursuant to Article 13(1) of the School Violence Prevention Act," and Article 17(1) of the Act shall apply to change of aggressor students:

As such, the Act on the Prevention of School Violence explicitly provides for the head of a school to take measures against an aggressor student upon the request of the autonomous committee and the organization of the autonomous committee is in the process of growing up without being aware of the dispute resolution in accordance with the legal order. Thus, even if an act contrary to the law is committed, it is interpreted that the purpose of fostering students as healthy members of the society is to lead and educate aggressor students and mediate disputes between the aggressor student and the aggressor student according to the procedure with which all school members can join when taking measures against it.

Considering the effect of the school violence measures on the future, the autonomous committee with authority to request the head of the school to take measures against school violence shall be democratic legitimacy from the school members because the organization of the autonomous committee is in accordance with the procedure prescribed by law. If the autonomous committee is not organized in accordance with the above legitimate procedure or if the autonomous committee is involved in an unlawful act that affects the legitimacy of the decision in the process leading to the decision of the request for measures, the request of the autonomous committee and the measures taken by the head of the school shall be unlawful.

B) the facts of recognition

(1) The Defendant did not wish to run as a member of the Autonomous Committee on Countermeasures against School Violence, and it is difficult to elect the member of the parents at the parents’ plenary meeting because it did not wish to run as a member of the parents, and each class representative has been commissioned as a member of the Committee on Countermeasures against School Violence if he/she elected the member for each class

(2) In March 15, 2018, five members representing parents were required to additionally commission three members representing parents. On March 15, 2018, 2018, at the audio-visual room, two members representing the class at the meeting of the first-class class and at the meeting of the second-class class representative at the meeting of the second-class class class at the school of the second-class student. The Defendant commissioned all these members as members representing parents without voting.

(3) The Defendant, through the family communication network, gave guidance to the holding of the parent assembly in 2018, only "public announcement of the election of the executive officers of the school parents association" was not "public announcement of the election of the members of the school violence autonomous committee".

[Ground of recognition] Facts without dispute, Gap evidence 5-1 and 2, the purport of the whole pleadings

C) Specific determination

(1) According to the above facts, the defendant did not publicly announce the members representing parents of the Autonomous Committee on Countermeasures against School Violence through family correspondence, etc., and without making any effort to elect the members representing parents at the parents’ plenary meeting, at the representative meeting of each class held by each school year according to the previous practice. The mere fact that there was no person wishing to run for the members representing parents at the parents’ plenary meeting held in the past falls under “reasons difficult to elect the representatives of parents at the “school parents plenary meeting” under the proviso of Article 13(1) of the School Violence Prevention Act.

(2) Even if not, the members representing parents of the instant autonomous committee were elected at the meeting of class representatives held in each school year, and cannot be deemed to have been elected at the meeting of parents representatives comprised of the representatives of each class. There is no evidence to recognize that there was delegation of authority to elect the members representing parents to the meeting of class representatives by each school year at the meeting of parents plenary meeting or the meeting of parents representative comprised of representatives by class.

(3) Therefore, since the members representing parents of the instant autonomous committee cannot be deemed to have been elected in accordance with the procedure stipulated in Article 13(1) of the School Violence Prevention Act, the instant disposition was conducted upon the request of the instant autonomous committee for the measures unlawful. Therefore, it is unlawful.

3. Conclusion

Therefore, the disposition of this case should be revoked without examining the remaining arguments of the plaintiff. Thus, the plaintiff's claim of this case is justified and it is so decided as per Disposition.

Judge Park Jong-yang

Judges Park Jong-hwan

Promotional Notes for Judges

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.