(영문) 대전지방법원 2012.11.28.선고 2012구합3479 판결

The Defendant’s disposition of change of schools against the Plaintiff on June 29, 2012 and disposition of suspension of attendance from July 6 (Friday) to transfer shall be revoked.

Reasons

1. Details of the disposition;

A. The Plaintiff and Red had been enrolled in 00 middle school 3 years 9.

B. On June 21, 2012, the father of the RedO reported school violence to the Busan Police Station to the effect that "the plaintiff was forced to leave the Red0's arms and legs without any justifiable reason from the school foundation of the year from the school year of 2012 and threatened him to leave the school." On the same day, the defendant who received the notification of school violence from the Asan Police Station to receive the notification of school violence from the day of the same day was investigated into the following facts.

A person shall be appointed.

C. On June 25, 2012 and June 28, 2012, the autonomous committee on countermeasures against school violence was held and investigated additional facts. The committee decided to take measures to suspend the Plaintiff’s transfer and transfer from July 6, 2012 to the date of transfer.

D. On June 29, 2012, the Defendant issued a disposition of transfer to the Plaintiff on the basis of Article 17 of the Act on the Prevention of and Countermeasures against School Violence, and a disposition of suspension of attendance from July 6, 2012 until the date of transfer (hereinafter “each disposition of this case”).

E. A father, the legal representative of the Plaintiff,* on July 5, 2012, the Plaintiff’s request for a disciplinary action to the Superintendent of the Provincial Office of Education, which was dissatisfied with each of the dispositions in the instant case, was dismissed on July 23, 2012.

F. On August 6, 2012, the Defendant requested the head of Chungcheongnam-do Office of Education to allocate school violence aggressor students against the Plaintiff to the head of the District Office of Education, Chungcheongnam-do Office of Education, and accordingly, the head of the District Education Office of Chungcheongnam-do Office of Education issued a disposition to allocate school violence aggressor students assigned to the Plaintiff on August 13, 2012 ** a middle school, and around that time, the Defendant transferred the Plaintiff’s school register, etc. to * a middle school and completed the Plaintiff’s transfer procedure to * a middle school.

[Ground of recognition] In the absence of dispute, Gap evidence 1, Eul evidence 1 to 10, Eul evidence 1 to 10 (including a lot number if there are several numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the lawsuit on the part of the claim for revocation of the suspension of attendance is legitimate;

In a case where the effective period of an administrative disposition is fixed and the validity or execution of the disposition is not suspended, the effect of the administrative disposition becomes null and void with the lapse of such period, and there is no legal interest to seek the cancellation of the disposition, unless there are other circumstances to deem that any legal interest is infringed upon due to the remaining effect of the disposition after the lapse of such period (see Supreme Court Decision 200Du7254, Jul. 26, 2002, etc.).

With respect to the instant case, the disposition of suspension of attendance of the Plaintiff was already executed, and the validity of the disposition cannot be deemed to continue until the present time after the lapse of the period of suspension of attendance from July 6, 2012 to the date of transfer. Thus, there is no special circumstance to deem that the disposition of suspension of attendance of the instant case continues to be an infringement of the legal interest of the Plaintiff and the Plaintiff due to the remaining shape of the disposition of suspension of attendance, and therefore, it is difficult to view that the Plaintiff holds the legal interest that the disposition of suspension of attendance of the instant case is revoked. Therefore, the part of the claim seeking the revocation of the disposition of suspension of attendance of the instant case is unlawful.

3. On a claim for the cancellation of the change of schools

A. Determination on the defense prior to the merits

In light of the fact that the Defendant had already completed the disposition of transfer of this case, and thus, the Defendant’s claim for revocation of the disposition of transfer of this case was unlawful as there was no benefit of lawsuit, and thus, the Plaintiff’s legal interest seeking revocation of the disposition of transfer of this case is still ongoing in a state where the Plaintiff cannot move to a middle school ** * * 00 middle school which was transferred to a middle school, and the previous school / her superintendent of education or the head of the district office of education pursuant to Article 20(4) of the Enforcement Decree of the Act on the Prevention of and Countermeasures against School Violence, etc.

It is reasonable to see that the defendant's defense on this part of the merits is without merit.

B. Determination on the merits

살피건대 , 갑 제2호증 , 을 제3 , 4 , 7호증의 각 기재에 변론 전체의 취지를 종합하여 인정되는 다음과 같은 여러 사정 , 즉 ① 원고와 홍0의 같은 반 급우들은 이 사건 학교 폭력과 관련하여 학교 측의 조사를 받으면서 원고가 이따금 홍0을 괴롭히고 때렸다는 취지로 진술한 점 , ② 담임교사도 이 사건 처분에 관한 재심사건에서 원고가 수차례에 걸쳐 홍0을 때리고 괴롭혔다는 취지로 진술한 점 , ③ 원고도 수차에 걸쳐 홍0의 팔을 때리거나 딱밤을 때린 사실을 인정하고 있는 점 , ④ 홍0은 2012 . 6 . 8 . 부터 2012 . 6 . 22 . 까지 OO아동발달센터에서 학교 폭력으로 인한 학교부적응문제로 인한 심리치료를 받은 점 , ⑤ 홍0의 부가 아산경찰서에 한 학교폭력 신고와 관련하여 대전지방검찰청 천안지청 검사는 2012 . 7 . 27 . 원고에 대하여 폭행 및 강요죄로 소년보호사건송치처분 을 한 점 등에 비추어 보면 , 학교폭력 가해자인 원고에 대한 피고의 이 사건 전학처분 은 적절한 조치였던 것으로 판단되는바 , 이와 반대의 견지에서 이 사건 처분이 재량권 을 일탈 · 남용한 것으로서 위법하다는 취지의 원고의 주장은 이를 받아들일 수 없다 .

4. Conclusion

Therefore, the part of the claim against the disposition of suspension of attendance in the lawsuit of this case is unlawful and dismissed, and the remaining claims of the plaintiff are dismissed as it is without merit. It is so decided as per Disposition.

Judges

The presiding judge Kim U.S.

Gangwon-hee

Judges Lee Jae-sung

Site of separate sheet

Relevant statutes

Act on Countermeasures against School Violence Prevention Light

Article 17 (Measures against aggressor Students) (1) An autonomous committee shall request the head of a school to take any of the following measures (including where several measures are concurrently taken) against a female student for the protection of a victim student and the guidance and education of an aggressor student, and the standards applicable to each measure shall be prescribed by Presidential Decree: Provided, That the expulsion from school shall not apply to an aggressor student in the course of compulsory education:

6. Suspension of attendance;

8. Transfer.

m. Enforcement Decree of the School Violence Prevention and Countermeasures Act

(1) Where an autonomous committee requests the head of an elementary school, middle school, or high school to transfer an aggressor student pursuant to Article 17 (1) of the Act, he/she shall request the head of the district office of education of the elementary school or middle school, and the head of the high school or high school shall request the superintendent of education to allocate the school to which the relevant student intends to transfer without delay.

(2) When allocating aggressor students to change schools, the superintendent of the competent office of education or the head of the competent district office of education shall raise sufficient distance, etc. for the protection of victim students, and shall notify the superintendent of the competent office of education or the head of the competent district office of education of students

(3) The superintendent of education or the head of a district office of education shall, upon receipt of notification under paragraph (2), allocate the relevant aggressor student to the school to be transferred.

(4) When an aggressor student who has been transferred pursuant to paragraphs (2) and (3) and a victim student are enrolled in a higher school, the superintendent of the competent office of education or the head of the competent district office of education shall allocate different schools respectively. In such cases, the victim student shall be allocated

참조조문

-학교폭력예방 및 대책에 관한 법률 제17조

-학교폭력예방 및 대책에 관한 법률 시행령

-학교폭력예방 및 대책에 관한 법률 시행령 제20조 제4항

참조판례

-대법원 2002. 7. 26. 선고 2000두7254 판결

유사 판례

-대전지방법원 2013.8.21.선고 2012구합5338 판결

-대법원 2015.09.10 2013추517

-대구지방법원 2017.12.22 2017구합23461

-대법원 2015.09.10 2013추524

-대법원 2015.09.10 2012추220