In a case where Party A, who is a student in the first year of high school, exercised school violence (collective harassment) such as bullying with five students in the same half of the same class, the principal sought the revocation of the disposition in writing and in accordance with the resolution of the Autonomous Committee for Countermeasures against School Violence, the case dismissing Party A’s claim.

In a case where Gap, who is a student of the first grade of high school, exercised school violence (collective harassment), such as bullying, etc. with five students of the same half of the same class, and the principal sought revocation of the disposition of Gap in writing and disposition from Gap in accordance with the resolution of the Autonomous Committee on Countermeasures against School Violence, the case holding that Gap's act of harming Eul's personal rights cannot be deemed to constitute "brut school" under Article 2 subparagraph 1 of the Act on the Prevention of and Countermeasures against Violence (hereinafter "School Violence Prevention Act"), and since Gap's act of harming Eul's children's happiness while harming Eul's physical and mental behavior is deemed to constitute an "brut school" under Article 17 (1) 1 of the School Violence Prevention Act, and Gap's written apology and disposition based on Gap's disposition, and Gap's personal rights cannot be deemed to have been infringed on, Gap's freedom and disposition of conscience can not be deemed to have been written and dismissed without forcing it to the extent that Gap's personal rights were not infringed.

Articles 10 and 19 of the Constitution of the Republic of Korea, Article 2 subparag. 1 of the Act on the Prevention of and Countermeasures against School Violence, Article 17(1)1 of the Act

Plaintiff (Law Firm citizen, Attorneys Go Young-deok et al., Counsel for the plaintiff-appellant)

○○ High School Head (Law Firm Dforeste, Attorneys Kim Blue-in, Counsel for the defendant-appellant)

October 8, 2015

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall revoke its written apology and disposition against the plaintiff on December 8, 2014.

1. Details of the disposition;

A. The Plaintiff and Nonparty 1 are students who were enrolled in the △△△ High School in 2014.

B. On December 3, 2014, an autonomous committee for countermeasures against school violence at ○○ High School (hereinafter “self-governing committee”) held a meeting of the autonomous committee and decided on the Plaintiff’s written apology and disposition against the victim pursuant to Article 17(1)1 of the Act on the Prevention of and Countermeasures against Violence (hereinafter “Act on the Prevention of School Violence”).

C. On December 8, 2014, the Defendant issued a written apology and disposition against the victim student (hereinafter “instant disposition”) to the Plaintiff in accordance with the resolution of the autonomous committee.

[Reasons for Recognition] Uncontentious Facts, Gap evidence 1, Eul evidence 4, the purport of the whole pleadings

2. Judgment on the defendant's main defense of safety

As the Plaintiff has already performed a written apology in accordance with the instant disposition, the Defendant asserts that the instant lawsuit is unlawful as there is no benefit to protect the rights.

However, Article 25(1) of the Elementary and Secondary Education Act provides that the head of a school shall prepare and manage data that can be used for the guidance of students and the selection of students from a higher school in accordance with the standards prescribed by Ordinance of the Ministry of Education by comprehensively observing and evaluating academic achievement, personality, etc., and Article 25(1)6 of the same Act provides that "act characteristics and comprehensive opinions" shall be recorded with respect to the relevant student, and Article 21(1)6 of the Enforcement Rule of the same Act provides that where measures are taken pursuant to Article 17 of the School Violence Prevention Act, the relevant student shall be recorded. In addition, Article 5(3) and (4) of the Regulations on the Preparation and Management of School Life Records (amended by the Ordinance of the Ministry of Education No. 57 of March 5, 2015) and Article 18(5) of the Guidelines for the Preparation and Management of School Life Records (B) provide that "the head of a school shall delete the relevant student's detailed school life records (personal characteristics and comprehensive opinions)."

According to the above provision, the content of the instant disposition is written in the "act characteristics and comprehensive opinion" column of school life records and remains in school life records until graduation. Since the facts that the Plaintiff was in the first grade of ○ High School around 2014 are as seen earlier, the Plaintiff seems to be still in school life records until the closing of argument in the instant case. Thus, if the Plaintiff won the instant lawsuit, the content of the instant disposition can be deleted from the school life records, and thus, the Plaintiff has a benefit in the protection of rights to dispute against it. Therefore, the Defendant's defense is without merit.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition is a procedural defect that violates Article 23 of the Administrative Procedures Act without presenting the grounds for the disposition.

The Plaintiff, despite having not exercised school violence against Nonparty 1, was unlawful since the instant disposition was based on the premise that it was unlawful.

The instant disposition is unlawful as it infringes on the freedom of conscience and personal rights guaranteed by the Constitution.

B. Relevant statutes

Attached Form "Related Acts and subordinate statutes" shall be as stated.

C. Facts of recognition

1) The Kakao Stockholm case

A) On May 1, 2014, the Plaintiff, Nonparty 2, Nonparty 3, Nonparty 4, Nonparty 5, Nonparty 6, Nonparty 7, Nonparty 8, and Nonparty 9 (hereinafter “Plaintiff, etc.”) showed plesure to the Nonparty 10 of other anti-students in the △△ Kakao Akao Akaothotho conference on May 1, 201, and Nonparty 1, who was Nonparty 10’s relative-gu dialogue, and delivered the content thereof to Nonparty 10, thereby disputing Nonparty 7 and Nonparty 10.

B) The Plaintiff et al. sent the content to Nonparty 10 at the Kakakao Stockholm, and expressed his desire to do so, and thereafter Nonparty 1 asked Nonparty 1 as to why Nonparty 1 knew that he was himself.

C) At the time of May 5, 2014, Nonparty 1’s mother knew of the above fact to the 1st year △△△△ teacher. As Nonparty 1 and his parents promised to prevent the recurrence to Nonparty 1 and their parents, Nonparty 1 and their parents terminated the instant case under the responsibility of a teacher in charge of a teacher in charge on May 13, 2014.

2) After the Kakao Stockholm case

A) After the Kakao Stockholm case, Nonparty 1 thought that the Plaintiff et al. continued to comply with Nonparty 1, and did not go to the school from October 23, 2014 to November 24, 201 of the same year, Nonparty 1’s parents informed Nonparty 1’s attending school. Nonparty 1 received it as school violence on November 24, 2014.

B) On October 24, 2014, November 21, 2014, Nonparty 1 stated that, if he/she is friend with himself/herself, the Plaintiff went back to his/her her friend that he/she could not be identical with her friend, and eventually, the same friend student tried not to have his/her friend with his/her friend, and that he/she fell into the floor of the sports uniform of the Plaintiff by his/her friending his/her friend while Nonparty 1 expressed that he/she was friended, and that he/she was treated as transparent during the class hours of his/her friending.

C) Around November 2014, a school teacher conducted a survey on the actual condition of school violence against the students of the △△△ Group on anonymous basis. Among them, there were students who are suffering from school violence such as language violence and bullying in classes, and the students were Nonparty 1, and the aggressor student was the plaintiff et al., and there was an answer to the additional question that the plaintiff et al. took a bath against the non-party 1.

D) Accordingly, on December 3, 2014, the Autonomous Committee on Countermeasures against School Violence was held on December 3, 2014. After hearing the opinions of Nonparty 1 and his mother, the Plaintiff et al. and the Plaintiff et al., and the attending teachers, Nonparty 1 resolved to receive psychological counseling and advice and to provide medical treatment and care, and the Plaintiff passed a resolution to give written apologys to the victim students.

E) Accordingly, the Defendant rendered the instant disposition to the Plaintiff on December 8, 2014.

F) Meanwhile, Nonparty 1 reported that the Plaintiff had a far-sports clothes, and filed a complaint against the Plaintiff as a crime of insult. However, on June 22, 2015, the Ministry of Incheon District Public Prosecutor’s Office rendered a non-prosecution on the grounds that Nonparty 1 was not specified as Nonparty 1.

[Reasons for Recognition] Facts without dispute, each of the evidence mentioned above, evidence of Gap evidence 2-1, 2, 3-1 to 3-2, Eul evidence of No. 1, 2-1 to 5, 3-1 to 6-6, the witness non-party 11's testimony, and the purport of whole pleadings

D. Determination

1) Whether procedural defects are procedural defects

Article 23(1) of the Administrative Procedures Act provides that an administrative agency shall present the basis and reasons for a disposition to the parties when it takes a disposition. This purport is to exclude arbitrary decisions of the administrative agency and allow the parties to properly cope with the administrative remedy procedure. Thus, in full view of the contents stated in the written disposition, related Acts and subordinate statutes, and the overall process up to the disposition, in a case where it is acknowledged that there was no particular hindrance to the party's moving into the administrative remedy procedure due to objection, it cannot be said that the disposition is unlawful, unless the grounds and reasons for the disposition are specified in the written disposition (see Supreme Court Decision 2007Du20362, Dec. 10, 2009).

According to the above evidence, the plaintiff prepared a detailed statement about the Kakao Stockholm case and a series of subsequent cases, and recognized that the autonomous committee for countermeasures against school violence also stated its opinion, and the plaintiff filed the lawsuit in this case, not school violence. According to the above facts, the plaintiff could have known which violation was committed by the plaintiff. In full view of the relevant Acts and subordinate statutes stated in the disposition document and the overall process, etc. up to the disposition, the disposition in this case can be sufficiently known, and thus, it is deemed that there was no hindrance to the plaintiff's moving to the administrative remedy procedure. Thus, the disposition in this case cannot be deemed to have violated Article 23 (1) of the Administrative Procedures Act.

(ii) the existence of the reasons for the action

Article 2 subparag. 1 of the School Violence Prevention Act provides that “school violence” means the act resulting in a physical or mental injury or damage to property through injury, assault, confinement, intimidation, abduction, abduction, defamation, insult, insult, coercion, coercion, sexual violence, bullying, cyber-bullying, or obscene or violent information via an information and communications network, etc. committed against students inside or outside of school.”

In this case, according to the above facts, the plaintiff's series of actions against the non-party 1 constitutes insult, bullying, etc., and thereby, it seems that the non-party 1 suffered a considerable physical and mental damage. Therefore, it is reasonable to deem that the plaintiff's act constitutes "school violence" as stipulated in Article 2 subparagraph 1 of the School Violence Prevention Act. Accordingly, the plaintiff's allegation in this part is without merit.

3) Whether the freedom of conscience and personal rights were infringed

With respect to whether the disposition of this case infringes on the Plaintiff’s freedom of conscience and personality rights, Article 17(1) of the School Violence Prevention Act requires that the autonomous committee shall request the head of the school to take any of the following measures against the aggressor student for the protection of the victim student and the guidance and education of the aggressor student. Since Article 17(1)1 of the Act provides “the written apology against the victim student”, the disposition of this case is a disposition based on the law, not compelling the contents of the document, but it appears that considerable autonomy is recognized. According to the evidence No. 5, the contents of the Plaintiff’s written statement prepared and issued to Nonparty 1 are close to Nonparty 1’s school due to the lack of knowledge of the Plaintiff’s emotional testimony that Nonparty 1 feel, and the Plaintiff’s emotional testimony that Nonparty 1 feel, and it is deemed that it was impossible to correct each other’s emotional adjustment, and the contents of the above written statement cannot be seen as infringing on the Plaintiff’s freedom of conscience and personality rights.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Judges Kang Jong-chul (Presiding Judge)