[1] The meaning of the so-called collective bullying

[2] The requirements and criteria for determining whether a victimized student committed suicide on the part of the principal of the school or the teacher's duty to protect and supervise the result of the suicide

[3] The case holding that in case where female students in the third year of middle school committed suicide due to the group bullying between them, it is not recognized that the possibility of the injured student's suicide was foreseeable to occur in light of the degree of bullying, the attitude of the act, the ordinary behavior of the injured student, etc., and thus, the liability for damages as to the result of the suicide

[1] The term "collective bullying" means a phenomenon in which multiple students in a group, such as a school or class, have the intention and active nature of one or a small number of students, and is alienated or bullying in a continuous and repeated relationship.

[2] In a case where a victimized student commits a suicide due to a group bullying, it should be objectively acknowledged that the victimized student was predicted, or could have predicted, the principal of the school or the teacher's duty to protect and supervise the result of the suicide in order to hold the victimized student accountable for the violation of the duty to protect and supervise the principal of the school or the teacher's duty to commit the suicide. However, if the victimized student continued to engage in malicious or serious group bullying, which cannot be permitted by social norms, and the injured student was predicted or could have predicted a physical or mental circumstance, it can be deemed that the injured student could have predicted, or could have predicted, the situation where the injured student committed the suicide. However, if the contents of a group bullying do not reach the same degree, it cannot be deemed that the injured student could have predicted, or could have predicted, the injured student's suicide. Thus, it cannot be said that the injured student was liable for the violation of the duty to protect and supervise the result of the suicide, apart from the fact that the teacher et al. is liable for the violation of the duty to protect and supervise

[3] In a case where female students in the third year of middle school committed suicide due to the collective bullying between them, the case affirming the local government's liability for damages caused by a group bullying in the course of performing teacher's duties, on the ground that it is not recognized that the possibility of predicting the suicide of the victimized student was established in light of the degree of bullying, the attitude of the act, the ordinary behavior of the injured student, and the ordinary behavior of the injured student, etc., and thus, the liability for damages for the result of suicide was denied.

[1] Article 750 of the Civil Act / [2] Articles 755 and 756 of the Civil Act, Article 2 (1) of the State Compensation Act / [3] Articles 755 and 756 of the Civil Act, Article 2 (1) of the State Compensation Act

Plaintiff (Attorney Park Jae-sik et al., Counsel for the plaintiff-appellant)

Gangwon-do (Law Firm Asian, Attorney Park Jong-soo, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2004Na46689 Delivered on January 26, 2005

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court. The Plaintiff’s appeal is dismissed.

1. As to the Defendant’s first ground of appeal

Group bullying refers to the phenomenon in which multiple students have intention and actively, and continuously and repeatedly in relation to one or a small number of students in a group, such as a school or class, and it is reasonable that the court below recognized that the deceased was subject to group bullying by Nonparty 1, etc. by taking account of the adopted evidence, and there is no violation of the rules of evidence or incomplete deliberation, etc. contrary to what is alleged in the grounds of appeal.

2. As to the defendant's grounds of appeal Nos. 2 and 3

A. The principal of a school or teacher established and operated by a local government is obligated to protect and supervise students. However, such duty to protect and supervise students is not a duty to supervise students on behalf of a legal supervisor, such as a person with parental authority, and it is limited to all the students' living relationship within the school, not a living relationship within the scope of such duty, but a living relationship closely related to educational activities in the school. Even if such duty is a living relationship within the scope of such duty, the principal or teacher shall be held liable for the violation of the duty to protect and supervise students only when the accident is anticipated or foreseeable to occur ordinarily in school life in light of the time and place of educational activities, the offender's ability to separate the offender, the character and conduct of the perpetrator, the relationship between the perpetrator and the victim, and other various circumstances (see, e.g., Supreme Court Decisions 92Da13646, Feb. 12, 1993; 9Da4205, Apr. 11, 200).

Therefore, in order to hold the victimized student accountable for the violation of the duty to protect and supervise the principal of the school or the teachers in relation to the result of the suicide, it should be objectively acknowledged that the victimized student was predicted or could have predicted the occurrence of the suicide. However, if the injured student was predicted or could have predicted that the injured student was in a physical or mental situation, it can be deemed that the injured student could have predicted the situation leading to the suicide. However, if the contents of the bullying do not reach the same degree, it cannot be deemed that the injured student could have predicted or predicted the suicide even if it was possible to predict the situation leading to the suicide of the injured student. Thus, the injured student cannot be deemed as having been able to expect the suicide of the injured student, regardless of the fact that the injured student was liable for the violation of the duty to protect and supervise the collective bullying itself.

나. 원심이 적법하게 인정한 사실에 의하면, 소외 1, 2, 3과 망인 등 4인은 같은 반 친구들로 2001. 3.경부터 배타적으로 어울리는 작은 집단을 형성하여 지내다가 소외 1이 위 집단을 주도하면서 망인을 집단에서 배척하였다가 다시 끼워주는 것을 되풀이하였고, 여름방학 이후부터는 망인이 말을 걸어도 아무런 대답을 하지 않는 등 망인을 의도적으로 배제하고, 망인이 교복을 줄여 입은 모습을 보면서 놀리거나 점심시간에 학교급식소에서 망인이 같은 식탁에 앉아 식사하려고 할 때 다른 식탁으로 옮겨 피하기도 한 사실, 이런 상황에서 2001. 9. 24. 망인의 필통이 없어지자 망인은 소외 1과 소외 2가 이를 숨긴 것으로 알고 다른 학생들 앞에서 이들에게 따졌다가 자신의 오해로 밝혀져 이들에게 사과하였으나 이들이 망인의 사과를 받아주지 않고 오히려 망인을 몰아세움으로써 소외 1 등과의 관계가 더욱 악화된 사실, 위와 같은 일이 발생한 후 망인은 2001. 9. 26.경에는 교복 대신 검은 스웨터를 입고 오고 자율학습 시간에 자주 교실을 드나드는 등 상당히 불안한 모습을 보였으며, 소외 3에게 자신과 함께 놀아 줄 것을 요청하였는데 이를 알게 된 소외 1, 2로부터 ‘ (이름 1 생략)가 니 쫑이냐’라는 말과 함께 면박을 당한 사실, 망인은 2001. 9. 27. 등교길에 다른 반 친구에게 전날 소외 1 등으로부터 면박 당한 일을 이야기하면서 ‘왕따 당하니까 괴롭고 힘들다. (이름 2 생략)이가 하나가 니 쫑이냐고 말하여 상처받았다’고 말한 사실, 같은 날 점심시간에 소외 1과 소외 2가 다른 학생들에게 ‘망인의 성격이 이상하다, 같이 놀지 마라’며 학교급식소로 몰려가 자신만이 남게 되자, 어머니인 원고에게 전화하여 ‘엄마, 나 사실은 왕따야. 전학시켜 줘. 죽을 것 같아’라고 울면서 이야기한 사실, 같은 날 하교길에 소외 1과 소외 2가 망인에게 약을 올리며 몰아세우기도 했는데, 망인은 귀가한 직후인 같은 날 17:00경 자신이 살던 아파트에서 투신하여 자살한 사실, 망인의 어머니인 원고는 망인이 3학년에 들어와 1학기부터 소외 1 등과의 교우관계로 문제가 있는 것으로 생각하여 망인에게 필요하면 학교에 도움을 요청하겠다고 하였으나 망인이 스스로 해결하겠다고 하여 달리 담임교사 등과 상담하지 않았고, 망인이 자살 당일 전화할 때까지 망인이 집단따돌림을 당하고 있고 이로 인하여 심한 고통을 받고 있음을 알지 못하였던 사실, 망인의 담임교사는 2001. 3.경 (학교명 생략)중학교에서 폭행사건으로 문제를 일으키고 전학 온 소외 1에 대하여 1교사 1학생 결연 상담 제도에 따라 소외 1의 학교생활 전반에 관하여 상담지도를 하였는데, 망인이 학기초에 소외 1과 급속히 가까워지자 이를 염려하여 망인에게 시간을 두면서 천천히 사귈 것을 권유하기도 한 사실, 담임교사는 소외 1 등이 망인과 집단을 형성하여 친밀하게 지내면서 망인을 집단에서 배척하였다가 다시 끼워주는 등의 갈등이 있음을 알았으나 학창 시절 교우관계에서 겪는 과정의 일부라고 생각하여 별다른 조치를 취하지는 않았고, 필통분실 사건에 대하여도 알지 못하였으나, 2001. 9. 26. 망인이 상당히 불안한 상태에 있다고 느껴 망인에 대한 상담이 필요하다고 판단하였고, 2001. 9. 27. 임원회의에 참석한 원고로부터 망인이 그날 점심 때 울면서 전화한 사정을 듣게 되자, 소외 1 등이 봄부터 망인을 집단에 끼워주었다 빼놨다 하는 것을 알고 있었는데 그러면서도 잘 지낼테니 걱정하지 말아라, 자신이 잘 이야기해 보겠다고 한 사실, 망인은 담임교사와 자주 상담을 하였으나 주로 공부문제에 관하여만 상담하였을 뿐 교우관계에 관한 어려움을 이야기 한 일은 없는 사실을 알 수 있다.

C. Examining these facts in light of the above legal principles, the act of Nonparty 1, etc. on the deceased, etc. after the collision where the deceased was the direct opportunity for the deceased's suicide, is hard to view it as a degree of malicious or serious bullying which cannot be permitted by social norms because the deceased did not receive any apology against the misunderstanding that the deceased was scambling, and it was difficult to view it as a degree to the extent that the act of excluding the deceased from the group was not frequent. In light of the fact that the act of the deceased was the main purpose of the act, it was to Nonparty 1, etc., without using the scambling method, and it was difficult to recognize that there was an accident of the deceased at the time of the suicide even if it was difficult to recognize that there was an accident of the student group caused by the student's social bullying at the time of the suicide.

However, according to the above facts, although the deceased want to establish a close relationship with the non-party 1, there was a conflict between the deceased and the group's rejection, etc. without establishing such a relationship, such a conflict can be considered as a daily problem that may occur in the school-level relationship, and the negligence caused by his negligence to cope with it can be recognized. Thus, the damage of the group bullying caused by his tort on his duties shall be liable to the defendant, who is the local government to which he belongs.

Nevertheless, the court below recognized the defendant's liability for damages even when the result of suicide goes beyond the damage caused by the collective bullying. The court below erred in the misapprehension of legal principles as to the responsibility to protect and supervise teachers, which affected the conclusion of the judgment. The part pointing this out in the grounds of appeal is with merit.

3. Plaintiff’s ground of appeal

The plaintiff's ground of appeal is based on the premise that the defendant is liable for the result of suicide of the deceased, and thus the court below acknowledged the defendant's liability to be less than 30% of the total loss. However, as long as the judgment of the court below which acknowledged the defendant's liability for the result of suicide is reversed on the ground as seen above, the above ground of appeal on a different premise cannot be accepted.

4. Conclusion

Therefore, the part of the judgment below against the defendant is reversed, and that part of the case is remanded to the court below for a new trial and determination, and the plaintiff's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Ji-hyung (Presiding Justice)