[1] Whether a punishment is permitted as a disciplinary method (negative in principle), and the requirements for a disciplinary action against a teacher to constitute a justifiable act as an exercise of the right to discipline

[2] The case holding that in a case where a teacher inflicts bodily injury upon an elementary school student during the second grade 2 and 3 weeks of her her son her her her her her her her her her her her her her her her her her her her her her her

[1] In light of the contents, legislative purport, etc. of the Framework Act on Education, the Elementary and Secondary Education, and the Enforcement Decree thereof, physical punishment is not allowed as a disciplinary method, and as a matter of principle, punishment is not imposed as a disciplinary measure. A physical punishment, which causes physical pain to students, is exceptionally allowed only when it is inevitable for education, and if it satisfies certain requirements, such as that the physical punishment of a teacher is an educational purpose, it shall not be exercised as a matter of course, but it shall not be allowed, in principle, to the extent that the basic human rights of a student can be respected and protected by the delegation of the principal, only in exceptional cases where education is inevitable. Accordingly, it is exceptionally permitted by the delegation of the principal to the extent that it is impossible to correct a student’s mistake as a means of education and that the method and degree of such punishment have objective validity acceptable under the social norms.

[2] In a case where a teacher inflicts bodily injury upon an elementary school student during 2 and 3 weeks of her her tock with a wooden machine in order to punish the second grade students of elementary school, the case holding that the above disciplinary act is beyond the limit permitted to exercise the disciplinary right of the teacher and its degree and it cannot be deemed a justifiable act

[1] Articles 20 and 257(1) of the Criminal Act; Article 12(1) and (2) of the Framework Act on Education; Articles 18(1) and 20(3) of the Elementary and Secondary Education; Article 31(1) of the Enforcement Decree of the Elementary and Secondary Education Act / [2] Articles 20 and 257(1) of the Criminal Act; Articles 12(1) and (2) of the Framework Act on Education; Articles 18(1) and 20(3) of the Elementary and Secondary Education Act; Article 31(1) of the Enforcement Decree of the Elementary and Secondary Education Act

[1] [2] Supreme Court Decision 90Do1456 delivered on October 30, 1990 (Gong1990, 2483) Supreme Court Decision 91Do513 delivered on May 14, 1991 (Gong1991, 1683)

Defendant

Gu Resident flag

Law Firm Pyeongmun, Attorneys Lee Il-il et al.

A defendant shall be punished by imprisonment for not less than eight months.

except that the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

The Defendant was a teacher in the second-year class 7 of ○ Elementary School located in Incheon (hereinafter omitted).

1. On October 13, 2008, the Defendant: (a) around the second grade and seventh grade classes of ○○ Elementary School (hereinafter “○○ Elementary School”); (b) on the ground that the victim Nonindicted Party 1 ( South and the age of 8) was in a written test taking a class while taking a written test, and (c) continued to put the victim’s answer in advance using a pen, and (d) continued to put the victim’s answer in false language; and (b) on the ground that the victim’s mack with a total of 80 macks, the Defendant placed the victim on both sides, which requires treatment for about 14 days, on the ground

2. On October 21, 2008, the Defendant: (a) around October 21, 2008, on the ground that the victim Nonindicted Party 2 (Vin, 7 years of age) was not able to dived during the class, and that he did not answer questions; (b) on the ground that he was 27 times in total her traw with the wooden machine, and was placed on both sides, which require the victim to receive medical treatment for about 21 days.

1. Defendant's legal statement;

1. Each police statement made against Nonindicted 1 and 2

1. A medical certificate of each injury and a photograph of damaged parts;

1. Article applicable to criminal facts;

Article 257 (1) of the Criminal Code (Selection of Imprisonment with Labor)

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act

As examined below, in light of the contents of the Act and subordinate statutes, the circumstances at the time of the crime, the situation after the crime, the age of the victims, and the relationship with the victims, etc., the defendant is determined to be in need of strict punishment. Thus, the defendant shall be sentenced to imprisonment with prison labor. The defendant deposits 60,072,020 won for the victims' medical treatment expenses and future medical treatment expenses to the Incheon Metropolitan City School Safety Mutual Aid Association, and deposits 5 million won for the victims' non-indicted 2, and 3 million won for the victims' non-indicted 1 again after the closing of argument, and the defendant seems to have lived with good faith as a teacher (the person or the school teacher of the defendant's school teacher's assistance in the defendant's activities is moving back to the defendant) and the Internet and the press, etc., and the defendant's or his family members have been under considerable mental pain from the time of the defendant's delivery, and the defendant's imprisonment with prison labor has to be suspended.

1. Details of the Acts and subordinate statutes governing the physical punishment of teachers;

Article 12 (1) of the Framework Act on Education provides that "the fundamental human rights of learners including students shall be respected and protected in the process of school education or social education," and Article 12 (2) provides that "the content of education, educational methods, teaching materials, and educational facilities shall respect the personality of learners and put emphasis on their personality so that students can show their abilities to the greatest extent." Article 18 (1) of the Elementary and Secondary Education Act provides that "the head of a school may punish students or instruct students by other means, as prescribed by Acts and subordinate statutes and school regulations, if necessary for education." Article 20 (3) of the Enforcement Decree of the same Act provides that "school teachers shall educate students as prescribed by Acts and subordinate statutes," and Article 31 (1) of the Enforcement Decree of the same Act provides that "the head of a school may take disciplinary action against students in accordance with the main sentence of Article 18 (1) of the Act, other than volunteer service within the school, educational service within the school, community service, etc., and the head of a school shall give lessons to students pursuant to Article 18 (1) of the same Act:

In light of the contents, legislative purport, etc. of these provisions, the physical punishment as a disciplinary method is not allowed, and as a matter of principle, the physical punishment, which causes physical harm to students, is exceptionally allowed only when it is inevitable for education. Thus, the physical punishment of teachers, in principle, shall not be exercised if it satisfies certain requirements, such as the existence of educational purposes, but shall be allowed only to the extent that the basic human rights of students can be respected and protected upon the delegation of the principal, only in exceptional cases where education is inevitable. Accordingly, it is exceptionally permitted to the extent that other educational means make it impossible to correct the error of students, and the method and degree of the punishment of a teacher has been objectively reasonable as acceptable under the delegation of the principal.

On the other hand, even if considering various circumstances shown in the records, the defendant did not have any other educational means against the victims at the time of committing the crime of this case (the defendant's defense counsel emphasized that the crime of this case was commenced for educational purposes, but in light of the contents of the above laws and regulations, it is difficult to see that the defendant's physical punishment of this case was justified) and the method and degree of physical punishment considerably lost objective validity. Meanwhile, according to the decision of the teachers' appeals review committee against the defendant, the defendant did not allow any physical punishment in Article 31 of the School Life Regulations to provide students guidance or educational activities. Thus, the defendant was in a state of delegation of the principal with regard to the physical punishment of the teacher at the time (the defendant was paid attention from the assistant principal even before committing the crime of this case).

2. Details of the crime and the situation at the time of the crime;

A. The Defendant took three times more than 10 times on the ground that the victim non-indicted 1 did not know about what he would have been wrong even though he had been trying to continue to speak, point out the truth, and to reflect on what he would have been wrong (The Defendant does not dispute the facts charged, but asserts that the number of punishment for the victim non-indicted 1 is only 30 persons), and in the case of the victim non-indicted 2, the victim non-indicted 2, who did not have a legislative agenda that the preceding day was promised, and who did not respond to the questions of the son not less than three times, was 27 times pursuant to the promise with the son.

B. Even though it is practically difficult to select and guide appropriate educational methods for children of the second grade of the elementary school who are still 7 and 8 years old at the time of the instant case, even though the personal and physical conditions of the Korean elementary school differs from those of interest and lack of learning ability or who are influence of attention, it is nothing more than to control the children easily through physical punishment, and even if the educational purpose was included in such action, such action was not taken into account that the first grade of the elementary school in the first process of the victims’ formation of personality through education and that the victims did not have yet to be aware of their responsibility for their actions, it was not deep enough to take into account that the educational love and interest for individual children have not yet been impaired.

In addition, the method and degree of the physical punishment imposed by the defendant cannot be deemed to significantly exceed the limit to which the number of students in the elementary school can be admitted even if the number of the arguments by the defendant exists, and as long as the physical punishment against the victims is reported by the children within the class of the school, it is considered that there was a situation in which other children in the class reported to be observed by the defendant's act could also have serious mental impulse.

3. The circumstances after crimes;

The victims are still children of the lower grade in elementary school, and physical injury are only two weeks and three weeks in each injury diagnosis report (However, according to the victim non-indicted 1's injury diagnosis report, it seems that the victims are diagnosed as two weeks from October 25, 2008, which is the date of the diagnosis) and are in need of mental treatment at present.

On the other hand, the defendant sent to the non-indicted 3 the victim non-indicted 2's mother on two occasions at around 02:00 on February 17, 2009, the letter "if the defendant's mother wants to live well and well-managed by him, he shall do so," and "if he commits several crimes, he shall be punished by her." (the defendant asserts that the defendant's mother will be able to know the defendant's situation without the defendant's name, and they will lose her sex and send it out). The defendant sent the victim non-indicted 2's mother's complaint against the non-indicted 3 without being informed of the victim until the end of receiving complete suspicion from the victims, and accordingly, the above non-indicted 3 suffered a further mental pain from the defendant's side.

Judges Yang Sung-soo