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제주지법 2020. 12. 15. 선고 2019구합6370 판결
[학교폭력가해학생처분취소] 확정[각공2021상,230]
Main Issues

In a case where a high school student Gap, etc. reported that he/she was subject to school violence from Eul et al., and the head of the school deliberated and decided to request Eul to take measures such as the written apology to a victim student as provided by Article 17(1)1 of the former Act on the Prevention of and Countermeasures against School Violence, and the prohibition of contact, intimidation, and retaliation against a victim student as provided by Article 17(1)2(a) of the former Act, and the head of the school notified Eul of each measure decided by the autonomous committee, the above deliberation and resolution was made by the autonomous committee on the countermeasures against school violence which was unlawful and thus made by the principal of the school.

Summary of Judgment

When a high school student Gap filed a report that he/she was subject to school violence with Eul, etc., the head of the school shall deliberate and resolve to request Eul to take measures such as a written apology against a victim student as provided by 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 “former Act”) and a written apology against a victim student as provided by 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 “former Act on the Prevention of and Countermeasures against School Violence”) and then request the principal of the school to take measures

Article 13(1) of the former Act on the Prevention of School Violence is unlawful because it is difficult to hold a general meeting of parents because one representative member of the autonomous committee was elected at a meeting of parents consisting of representatives of each class, not a general meeting of parents but a general meeting of parents. Since there was a period of about two months after resignation of a representative member of the existing autonomous committee, it is difficult to hold a general meeting of parents. According to Article 14 of the former Act, the election of a representative member of parents is unlawful against Article 13(1) of the same Act. According to Article 14 of the same Act, a specialized school teacher or a teacher responsible for school violence report the result of consultation with a victim student or aggressor student in relation to school violence at the request of the principal of the school and the autonomous committee, or a person who is in the position of the principal of the school and the autonomous committee to report the matters verified and confirmed, and thus, a specialized school teacher or a teacher responsible for school violence who consulted and investigated the relevant case cannot be held fair and independent from the duties required of a member of the autonomous committee.

[Reference Provisions]

Articles 13(1), 14, and 17(1) of the former Act on the Prevention of and Countermeasures against School Violence (Amended by Act No. 16441, Aug. 20, 201)

Plaintiff

Plaintiff (a minor is the father of parental authority, the father of parental authority, the mother of parental authority, and the non-party 2)

Defendant

○○ High School Head (Attorney Ansan-mo, Counsel for the defendant-appellant)

October 20, 2020

Text

1. Each disposition taken by the Defendant against the Plaintiff on May 20, 2019 that “the prohibition of contact, intimidation, and retaliation against victimized students” and “the prohibition of retaliation against victimized students” shall be revoked.

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

3. The execution of each disposition referred to in paragraph (1) shall be suspended until the date the appellate judgment of this case is pronounced.

The same shall apply to the order.

Reasons

1. Details of the disposition;

The Plaintiff entered ○○ Foreign Language High School in 2019 (hereinafter referred to as “○○ High School”) and was enrolled in the first year, and was living in the same room as Nonparty 3, who was the same school year.

On April 28, 2019, Nonparty 3 reported to the Defendant that the Plaintiff, etc. was subject to school violence.

The Autonomous Committee on Countermeasures against School Violence (hereinafter “Autonomous Committee”) held a meeting on May 16, 2019. At the above meeting, the Plaintiff deliberated on and resolved to request the head of the school to take measures of five days of contact, intimidation, and retaliation 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 “former Act”); and to request the Plaintiff to take measures of five days of service at the school specified in subparagraph 3(a) (hereinafter “instant deliberation and resolution”). On May 20, 2019, the Defendant rendered a decision to take measures of each autonomous committee’s resolution against the Plaintiff and notified the Plaintiff thereof.

○ The Plaintiff dissatisfied with the above measure and filed an administrative appeal with the Administrative Appeals Commission (the name of the Office of Education omitted) on June 28, 2019. The said Administrative Appeals Commission partially accepted the claim on August 26, 2019, and revoked the part regarding the service day at school and dismissed the remainder of the claim (hereinafter referred to as “instant disposition”).

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 and 5 (including each number; hereinafter the same shall apply), the purport of the whole pleadings

2. Relevant statutes;

It is as shown in the attached Form.

3. Summary of the plaintiff's assertion

(a) Chapter 1: Illegality of the autonomous committee;

On March 15, 2019, two of the representatives of parents who attended the autonomous committee as a member of the deliberation and resolution of the instant case were elected at the plenary meeting of parents from ○○ other than ○○, and the above election was in violation of Article 13(1) of the former Act, which did not go through the candidate registration procedure and on-site voting.

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)

The non-party 4, who was present as a member of the autonomous committee in the deliberation and resolution of the instant case, participated in the deliberation and resolution of the instant case even though he/she is disqualified as a member of the autonomous committee by conducting an investigation into the school violence reporting case against the Plaintiff, or was disqualified or challenged pursuant to Article 26 of the former Enforcement Decree of the Act on the Prevention of and Countermeasures against School Violence (amended by Presidential Decree No. 3041 of Feb. 25, 202

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

(b) Chapter 2: Non-establishment of grounds for disposition;

The Defendant did not properly notify the Plaintiff of the facts causing the instant deliberation and resolution prior to the opening of the autonomous committee meeting, and did not present the relevant grounds in detail. Therefore, the instant disposition was erroneous in the course of violating Article 17(5) of the former Act and Article 23(1) of the Administrative Procedures Act.

C. Chapter 3: Not constituting “school violence”

Although the Plaintiff did not commit an act falling under “school violence” under Article 2 subparag. 1 of the former Act against Nonparty 3, the instant disposition was unlawful on the ground that there was no ground for disposition.

4. Determination as to the first proposal

(a) Basic facts

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

○ On March 8, 2019, the Defendant sent a family correspondence letter to the parents of ○○ and other parents on March 8, 2019, stating that “the plenary meeting is held on March 15, 2019.” The said family communication letter includes “election of the members for parents of the Committee for the Autonomous Countermeasures against School Violence.”

The plenary meeting of parents was held on March 15, 2019, and the two parents were elected as the representative members of the autonomous committee, which was the one of the two parents.

○ immediately after the general meeting of parents, one representative member of parents resigned from office as a member of the autonomous committee, and the defendant held a meeting on March 22, 2019, consisting of representatives of each class, and one parent was elected as a representative member of parents.

The non-party 4 was investigated by means of interview and receipt of confirmation documents about the school violence reported by the non-party 3 as ○○ and the school violence assistant as well as the school violence assistant. The non-party 4 participated in the deliberation and resolution of this case as a member of the autonomous committee.

[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 representing members of parents on March 15, 2019 is unlawful

The Defendant’s holding of the parents’ plenary meeting and the fact that two representative members of the parents’ plenary committee were elected was publicly announced in advance to the parents, and the parents’ plenary meeting was held as publicly announced, and so long as the representative members of the parents were elected, it is unreasonable to view that the representative members of the parents were directly elected at the “all parents plenary meeting,” and it is difficult to find out the legal grounds that the members of the parents’ plenary meeting should undergo the prior candidate registration procedure to elect the representative members of the parents’ plenary committee or that the election should be conducted by the voting method. Therefore, the Plaintiff’s assertion on this part of the Plaintiff’s assertion cannot be said to violate Article 13(1) of the former Act, and there is no other evidence on the circumstances that the above election is unlawful.

C. Whether the election of one representative member of parents on March 22, 2019 is unlawful

On March 22, 2019, the issue arises as to whether a representative member of the autonomous committee was “any reason that makes it difficult to elect the representative of the parents at the school parents plenary meeting” under the proviso of Article 13(1) of the former Act at the time of being elected at the representative meeting of the parents rather than the plenary meeting of parents.

The Defendant asserts that “the resignation of an existing member representing parents was difficult to elect a representative member at a parents’ plenary meeting again because it was one week after the opening of the parents’ plenary meeting on March 15, 2019,” it is difficult to hold a parents’ plenary meeting. Therefore, it is difficult to hold a parents plenary meeting between the two-month period since the existing member representing parents resigned until the autonomous committee was held on May 16, 2019, since there was a period of about two months after the resignation of the existing member representing parents, it is difficult to deem that it was difficult to hold a parents plenary meeting between the two-month period. Since there was no assertion or materials on other special circumstances that could have

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

D. Whether Nonparty 4’s participation in the autonomous committee as a member is illegal

In light of the following circumstances, the aforementioned evidence, the purport of the entire pleadings, and the following circumstances revealed by the contents of the relevant statutes, the non-party 4 at the time of the deliberation and resolution of the instant case did not have qualifications as a member of the autonomous committee.

◎ 소외 4가 ○○외고 학교폭력책임교사이고, 나아가 소외 3의 학교폭력 신고 사안에 관하여 원고와 소외 3 등과 면담하는 방법 등으로 조사하고 2019. 5. 16. 자치위원회에 출석하여 피해학생 및 가해학생과의 상담결과를 보고하였으므로, 구 법률 제14조 제1항 이 정한 전문상담교사로서의 역할까지도 수행하였다고 할 것이다.

◎ 자치위원회의 위원은 학교폭력 사안에서 피해학생과 가해학생에 대한 조치 등을 심의하는 기구로서, 그에 관한 제척, 기피, 회피 제도가 존재하고 발언 내용을 비밀로 하며 회의록을 공개하는 경우에도 성명 등 개인정보에 관한 사항은 제외하도록 하는 등, 위원의 업무수행의 공정성과 독립성을 확보하기 위한 제도적 장치들이 마련되어 있다. 그런데 구 법률 제14조 에 따를 때 전문상담교사 또는 학교폭력책임교사는 피고 및 자치위원회의 요구에 따라 학교폭력에 관련된 피해학생 및 가해학생과의 상담결과를 보고하거나, 피고가 구성한 전담기구의 구성원으로서 학교폭력 사태에 관한 가해 및 피해 사실 여부를 확인하고 이에 관하여 확인한 사항을 피고 및 자치위원회에 보고하는 지위에 있는 자로서, 당해 사건에 관하여 상담 및 조사 업무를 수행한 전문상담교사 또는 학교폭력책임교사는 자치위원회의 위원에게 요구되는 업무수행의 공정성과 독립성이 보장된다고 할 수 없어, 학교폭력 사건에 대한 조사 및 보고, 심의 구조에 비추어 자치위원회 위원으로서의 자격이 없다고 보아야 한다.

◎ 이는 소외 4가 개별 학교폭력 사안에서 제척 또는 기피 대상이 된다는 것에 그치지 않고, 소외 4가 전문상담교사 또는 학교폭력책임교사의 직책을 맡고 있는 한 구조적으로 자치위원회 위원의 자격 자체가 부여될 수 없다는 의미이므로, 원고와 그 부모가 이 사건 심의ㆍ의결 당시 자치위원회 회의에 출석하여 위원으로부터 ‘자치위원회 참석 위원 중에서 이번 심의에 대해 공정한 심의를 할 수 없다고 생각되는 위원이 있다면 기피신청하라.’는 안내를 받고서도 소외 4에 대하여 기피신청을 하지 아니하였다는 이유만으로 위와 같은 자치위원회 구성의 하자가 치유되는 것이 아니다.

◎ 피고는 ‘소외 4가 자치위원회에서 형식적으로 절차를 진행하고 사안을 설명하기만 하였고, 심의 의결에는 다른 위원들의 의견에 묵시적으로 동의하는 데 그쳤을 뿐’이라며 업무수행의 공정성과 독립성에는 영향이 없었다고 주장하기도 하나, 위 주장 자체가 소외 4의 업무수행의 독립성을 의심하게 만드는 사정에 해당할뿐더러, 소외 4가 실제로 의결에까지 관여한 이상 업무수행의 공정성에 영향이 없었다고 단정하기도 어렵다.

E. Sub-decision

The instant deliberation and resolution is deemed to have been made by an autonomous committee composed of unlawful members because one representative of parents (election on March 22, 2019) and non-party 4 participated as a member, and the legally elected representative of parents falls short of a majority of all the members, and thus, the instant disposition is unlawful as it does not follow the request of an autonomous committee for measures following a legitimate deliberation and resolution. Thus, without examining the remaining arguments of the Plaintiff, the instant disposition is unlawful and should be revoked as it is unlawful.

5. Conclusion

The plaintiff's claim is justified and it is difficult to recognize that there is a possibility of significant impact on public welfare due to the suspension of the execution of the above disposition, and it is difficult to recognize that the execution of the disposition of this case is likely to be significantly affected by the suspension of the execution of the above disposition. It is so decided as per Disposition by the court below's decision.

[Separate] Relevant Acts and subordinate statutes: omitted

Judges Kim Jong-tae (Presiding Judge)

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