2018Guide 12153 Invalidity of a disposition of school violence

A

B High School Superintendent

January 30, 2019

March 13, 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. The Ministry of Finance and Economy;

A. On April 7, 2017, the Defendant held an autonomous committee on countermeasures against school violence (hereinafter referred to as the “instant committee”) and deliberated and resolved on the agenda that “the Plaintiff committed assault against C students at the seaside of the B High School (hereinafter referred to as “schools”) on March 23, 2017.”

B. On April 10, 2017, according to the resolution of the instant commission, the Defendant issued a disposition to order the Plaintiff to take five days of suspension of attendance, ten hours of special education, four hours of special education for guardians (hereinafter “instant disposition”).

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

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The defendant did not comply with the legitimate formation procedure 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 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) 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 impracticable to elect representatives of parents at the parents plenary meeting of parents, representatives of parents may be elected at the plenary meeting of parents.” Article 14(1)3 of the Enforcement Decree of the School Violence Prevention Act provides that the representatives of parents elected shall be appointed or commissioned as members of the autonomous committee. In addition, Article 17 of the School Violence Prevention Act provides that the autonomous committee shall request the head of the school to take measures falling under any subparagraph of the same paragraph against aggressor students for the protection of victim students and leading and educating aggressor students (Article 13(1) of the same Act).

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. The reason why the Act explicitly provides for the members of the autonomous committee and 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, juveniles cannot avoid disputes arising between their members in a social life. Since juveniles can not be aware of the dispute resolution pursuant to the legal order and have yet to grow up without being aware of the dispute resolution, even if they are in violation of the law and regulations, they should be interpreted to have the educational direction that contributes to the desirable growth of the students concerned.

In light of the legislative intent of the relevant laws and regulations, when the autonomous committee with the authority to request measures against school violence affects the future of the relevant student, it is unlawful to request the autonomous committee to take measures against school violence and to obtain democratic legitimacy from school members. If the autonomous committee does not constitute a legitimate procedure or there is an error of affecting the legitimacy of the decision in the process leading to the decision of the request for measures, the autonomous committee's request and its accompanying measures 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 (the defendant's side did not keep any material about the holding of the parents' meeting) held in 2017. School parents only consulted on the selection of the student's right to participate in the restaurant itself through Mesens. School parents did not receive any instruction about the defendant's official guidance on the opening of the meeting, the agenda of the meeting, and the election of the members of the committee of this case, and some parents were allowed to participate in the meeting at the same place without any choice. Members of the parent's meeting or the members of the committee of this case were decided to take the form of changing the number of the children's right to participate in the meeting (which was subject to deliberation by the committee of this case). Ultimately, they did not provide information properly in advance to the parent's meeting (which did not have any opportunity for parents to present their democratic will, and the election of parents at the general meeting of parents cannot be seen as legitimate in the above legislation.

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 defect existing in the administrative disposition is significant and obvious, and thus, the composition of the committee in accordance with such procedure is serious. In light of the relevant statutes, regulations and purport as seen earlier, it seems obvious that the composition of the committee in this case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’

3. Conclusion

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

Judges Kim Gin-won