(영문) 제주지방법원 2020.12.15.선고 2019구합6370 판결

1. On May 20, 2019, the disposition that the Defendant rendered against the Plaintiff on May 20, 2019, such as “a written apology against the victimized student,” “Prohibition of Contact, Intimidation, and Retaliation” is revoked.

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

3. The execution of each disposition specified in paragraph (1) shall be suspended by the date the appellate court rendered a judgment in this case.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

The Plaintiff entered △△ High School in 2019 (hereinafter referred to as “△△ High School”) and was in the first year, and was living in the dormitory, such as B, in the same school year.

B on April 28, 2019, reported to the Defendant that the Plaintiff, etc. was subject to school violence.

On May 16, 2019, the Autonomous Committee on Countermeasures against School Violence (hereinafter referred to as the "Autonomous Committee on Countermeasures against School Violence") held a meeting on May 16, 2019. At the above meeting, it deliberated and decided to request the Plaintiff to take measures of five days against the victim under Article 17 (1) 1 of the former Act on the Prevention of and Countermeasures against School Violence (amended by Act No. 16441, Aug. 20, 2019; hereinafter referred to as the "former Act"), the contact with the victim under Article 17 (1) 2, the prohibition of intimidation and retaliation against the victim under subparagraph 3 (hereinafter referred to as the "Deliberation and Resolution of this case"). On May 20, 2019, the Defendant notified the Plaintiff of each of the measures decided by the autonomous committee.

On June 28, 2019, the Plaintiff dissatisfied with the above measure and filed an administrative appeal with the Jeju Special Self-Governing Provincial Office of Education. On August 26, 2019, the said administrative appeals commission accepted part of the claim, and revoked the part concerning five days service in the school and dismissed the remainder of the claim (hereinafter referred to as the "disposition" in this case) among the above measures. [The ground for recognition] The fact that there is no dispute over the remaining part of the measure that was partially revoked, i.e., the disposition written in the order, hereinafter referred to as the "Disposition in this case"). Each entry (including each number; hereinafter the same shall apply),

2. Relevant statutes;

It is as shown in the attached Form.

3. Summary of the plaintiff's assertion

A. Chapter 1: Two representatives of parents from among the representatives of parents who attended the autonomous committee's meetings on March 15, 2019 as members of the deliberation and resolution of the case where an error in the organization of the autonomous committee was committed, which was elected at the plenary meeting of parents of △△△, and the above election is a violation of Article 13(1) of the former Act, which did not go through a prior candidate

On March 22, 2019, another one of the representatives of parents who participated in the deliberation and resolution of the instant case as a member of the autonomous committee was elected at the parents representative meeting comprised of the representatives of each class on March 22, 2019, even though there was no reason to make it difficult to elect at the parents representative meeting. This is against Article 13(1)

Article 26 of the former Enforcement Decree of the Act (amended by Presidential Decree No. 3041 of Feb. 25, 2020), a member of the autonomous committee, who attends the deliberation and resolution of the instant case, was disqualified as a member of the autonomous committee by conducting an investigation into school violence reports to the Plaintiff, or participated in the deliberation and resolution of the instant case despite being disqualified or challenged pursuant to Article 26 of the former Enforcement Decree of the Act.

Therefore, the deliberation and resolution of this case are carried out by the autonomous committee illegally organized, and the dispositions of this case are procedural errors.

B. Chapter 2: The defendant did not properly notify the plaintiff of the facts causing the disposition before the autonomous committee holds a meeting, and did not present the grounds in detail while notifying the result of the deliberation and resolution of this case. Therefore, the disposition of this case is in violation of Article 17(5) of the former Act and Article 23(1) of the Administrative Procedures Act.

Although the Plaintiff did not engage in the act corresponding to “school violence” under Article 2 subparag. 1 of the former Act, the instant disposition was unlawful due to the absence of the grounds for disposition.

4. Determination as to the first proposal

(a) Basic facts;

The ○○○ autonomous committee shall be comprised of nine members, and five of which is a majority shall be representatives of parents.

On March 8, 2019, the Defendant sent to the parents of △△△ high-level, a family correspondence letter stating that “the general meeting of parents will be held on March 15, 2019.” The said family communication letter states “the election of members for parents of school violence autonomous committees”.

On March 15, 2019, the plenary meeting of parents of ○○○○ and △△△△ was held on March 15, 2019, and two parents were elected as representatives of parents of the autonomous committee.

After the plenary meeting of the above parents, one representative member of the existing parents resigned from office as a member of the autonomous committee, and the defendant held a meeting of the representative member of the parents composed of representatives from △△ high class on March 22, 2019, and one parent was elected as the latter representative member of the parents. C was investigated by the method of receiving related persons' interview and confirmation regarding the school violence reported within the school violence reported in B as a school violence teacher of △△ high student group and school violence reported in the school violence reported in the instant case, and participated in the deliberation and resolution of the instant case.

[Reasons for Recognition] Facts without dispute, Gap evidence 6 through 8, 10 evidence, Eul evidence 1, 3 through 5, the purport of the whole pleadings

B. Whether the election of two representatives of the parents on March 15, 2019 is illegal or not, the Defendant publicly announced the fact that two representatives of the parents of the autonomous committee was held at the parents' plenary meeting in advance, and the fact that two representatives of the parents were elected was held at the plenary meeting, and as long as the representative members of the parents were elected, it is not unreasonable to see that the representative members of the parents were directly elected at the plenary meeting, and it is difficult to find any legal ground that the prior candidate registration procedure is required to elect the representative members of the parents of the autonomous committee or that the election should be conducted by the voting method. Therefore, the Plaintiff’s assertion on this part alone is difficult to say that the election of two representatives of the parents’ plenary committee on March 15, 2019 violates Article 13(1) of the former Act, and there is no other evidence as to the circumstances that the above election is unlawful.

C. Whether the election of one representative member of parents on March 22, 2019 is illegal or not there is a problem as to whether there was "any reason why it is difficult to elect the representative of parents at a school parents plenary meeting" under the proviso of Article 13(1) of the former Act at the time of election at a school parents plenary meeting, which is not a parents plenary meeting on March 22, 2019.

The defendant asserts that the resignation of a member representing parents of existing parents was not one week after the opening of the parents' plenary meeting on March 15, 2019, and therefore it was difficult to elect a representative member at the parents' plenary meeting again. Therefore, it is difficult to hold a plenary meeting between the two-month period since the member representing parents of existing parents resigned from office until the autonomous committee was held on May 16, 2019, and it is difficult to hold a plenary meeting between the two-month period. Since there is no assertion or material on other special circumstances that could have been difficult to hold it, the above argument by the defendant is difficult to accept.

If so, the election of one representative member of parents on March 22, 2019 is illegal against Article 13(1) of the former Act.

(d) Whether the participation of C by the autonomous committee as a member is illegal

According to the facts based on the facts, the evidence mentioned above, the purport of the entire pleadings, and the following circumstances revealed by the contents of the relevant statutes, it shall be deemed that C had no qualification as a member of the autonomous committee at the time of the instant deliberation and resolution.

◎ C가 △△고 학교폭력 책임교사이고, 나아가 B의 학교폭력 신고 사안에 관하여 원고와 B 등과 면담하는 방법 등으로 조사하고 2019. 5. 16. 자치위원회에 출석하여 피해학생 및 가해학생과의 상담결과를 보고하였으므로, 구 법률 제14조 제1항이 정한 전문상담교사로서의 역할까지도 수행하였다고 할 것이다.

In the case of school violence, a member of an autonomous committee is an organization that deliberates on the measures, etc. against a victim student and aggressor student in the case of school violence, and there are institutional devices to ensure the fairness and independence of the member’s performance of duties, such as exclusion, challenge, and avoidance system exists, the details of the statement are confidential, and the minutes are disclosed to the public. However, in accordance with Article 14 of the former Act, the expert counselors or the teachers responsible for school violence shall report the results of counseling with the victim student and aggressor student in relation to the school violence at the request of the defendant and the autonomous committee, and shall be in the position to confirm the occurrence of the school violence situation and damage and to report the confirmed matters to the defendant and the autonomous committee. The expert counselors or the teachers responsible for school violence who provide counseling and investigation in relation to the case cannot guarantee the fairness and independence of the duties required of the member of the autonomous committee. Thus, the investigation and reporting on the school violence case, and the structure of the deliberation

◎ 이는 C가 개별 학교폭력 사안에서 제척 또는 기피 대상이 된다는 것에 그치지 않고, C가 전문상담교사 또는 학교폭력 책임교사의 직책을 맡고 있는 한 구조적으로 자치위원회 위원의 자격 자체가 부여될 수 없다는 의미이므로, 원고와 그 부모가 이 사건 심의·의결 당시 자치위원회 회의에 출석하여 위원으로부터 '자치위원회 참석 위원 중에서 이번 심의에 대해 공정한 심의를 할 수 없다고 생각되는 위원이 있다면 기피신 청하라'는 안내를 받고서도 C에 대하여 기피신청을 하지 아니하였다는 이유만으로 위와 같은 자치위원회 구성의 하자가 치유되는 것이 아니다.

Although the defendant asserts that the "C" process was conducted formally by the autonomous committee and explained the matter, and that the deliberation resolution only gave implied consent to other committee members' opinions," and that there was no influence on the fairness and independence of the performance of duties, it is difficult to conclude that the above assertion itself does not affect the fairness of the performance of duties as long as C actually takes part in the resolution, as long as C actually takes part in the resolution, it does not affect the fairness of the performance of duties.

E. Sub-decision

The instant deliberation and resolution shall be deemed to have been made by the autonomous committee composed of unlawful members because one representative of parents (election on March 22, 2019) who is not qualified as a member and one representative of parents who is duly elected falls short of a majority of all members, and thus, the instant disposition is unlawful since it does not comply with the request of the autonomous committee for measures following a legitimate deliberation and resolution. Thus, the instant disposition shall be revoked as it is unlawful as it is not necessary to examine the remainder of the Plaintiff’s remaining arguments.

5. Conclusion

The plaintiff's claim is justified and the execution of the above disposition is suspended, and it is difficult to recognize that there is a risk of significant impact on public welfare due to the above disposition. Thus, the execution of the disposition in this case is to be suspended ex officio by the date of the decision of the appellate court of this case. It is so decided as per Disposition.