2018Guhap71656 Invalidity of Disposition of School Violence Prevention and Countermeasures Act

A

Since it is a minor, the legal representative B and C

D Elementary School Superintendent

Law Firm at present, Counsel for defendant-appellant

[Defendant-Appellant]

November 23, 2018

January 18, 2019

1. Of the instant lawsuit, the part of the claim for nullification of the disposition of special education of five hours’ protectors shall be dismissed.

2. On February 24, 2017, the Defendant’s disposition of contact, intimidation, and the prohibition of retaliation against the Plaintiff on February 24, 2017, and the disposition of completion of special education for nine hours is confirmed to be invalid.

3. Of the costs of lawsuit, 1/20 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. The validity of the disposition stated in paragraph 2 shall be suspended until the judgment of the appellate court of this case is pronounced.

(2) On February 24, 2017, the disposition of receiving special education by a guardian for five hours against the Plaintiff is invalid.

1. Details of the disposition;

A. The Plaintiff was enrolled in the first and third classes of D elementary schools even in 2016.

B. On February 2017, when the Plaintiff received a report that the Plaintiff exercised school violence to E who is a female student of the same Ban, the D Elementary School Violence Autonomy Committee (hereinafter referred to as “Autonomous Committee”) held a meeting on the 15th day of the same month (hereinafter referred to as “instant autonomous committee meeting”) and deliberated on the guidance and education measures of the Plaintiff, and decided to request the following from the Plaintiff and the Defendant as a measure against the Plaintiff’s guardian.

(1) Prohibition of any contact, intimidation, and retaliation against victim students and reported or accused students under Article 17 (1) 2 of the Act on the Prevention of and Countermeasures against School Violence (hereinafter referred to as "Act on the Prevention of and Countermeasures against School Violence").

(2) nine hours of completion of special education under paragraph (3) of the same Article.

(3) Five hours after completing the special education of protectors under paragraph (9) of the same Article.

C. On February 24, 2017, upon receipt of a request from the autonomous committee for the resolution under the above paragraph (b) above, the Defendant took the same measures as the above Paragraph (b) above to the Plaintiff and the Plaintiff’s guardian on the grounds of the Plaintiff’s injury to E, language violence, physical assault, etc. (hereinafter “instant measure,” and “measures of the above paragraph (3) against the Plaintiff’s guardian,” respectively.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 2, the purport of the whole pleadings

2. Determination ex officio as to the legitimacy of the claim for nullification of the second disposition of this case

A. We examine ex officio the validity of the claim for nullification of the second disposition of this case among the lawsuits of this case.

B. Article 17(3) of the School Violence Prevention Act provides that "any aggressor student who has received a disposition under subparagraphs 2 through 4, and 6 through 8 of paragraph (1) shall undergo special education or undergo psychological treatment at an institution designated by the Superintendent of the Provincial Office of Education, which shall be determined by the autonomous committee," and Article 17(9) of the same Act provides that "When an aggressor student undergoes special education, the guardian of the student shall also undergo special education if the aggressor student undergoes special education." In light of the form and contents of each of the above provisions, it is reasonable to see that the special education is taken for the guardian of aggressor student under Article 17(9) of the School Violence Prevention Act (Article 2 of this case) (Article 17(1)2 through 4, and 6 through 8 of the same Act and "special education is taken for the guidance and education of the aggressor student under Article 17(1)2 through 8 of the same Act."

In other words, when the special education of aggressor students is effective and a special education of aggressor students is completed, the guardian of the aggressor student shall receive the education together with the aggressor student according to the above provision. If the special education of aggressor students is revoked or invalidated, and the aggressor student does not complete the special education, the special education of the guardian of the student is lost. Therefore, the guardian of aggressor student has no legal interest in dispute as to whether the special education of the guardian of aggressor student under Article 17 (9) of the School Violence Prevention Act is legitimate, and even if the second disposition of this case is taken independent, the plaintiff is not the other party to the second disposition of this case, and there is no legal interest in seeking confirmation of invalidity.

C. Therefore, the part regarding the Plaintiff’s claim seeking confirmation of invalidity of the second disposition of this case, which constitutes a measure of special education for the guardian of aggressor students under Article 17(9) of the School Violence Prevention Act, is unlawful.

3. Whether the first disposition in this case is lawful

A. The plaintiff's assertion

(i) substantial defects;

A) The Plaintiff and E did not commit an act of school violence under the School Violence Prevention Act, such as that the Plaintiff and E were in distressed in the sports ground ice, and that there was no coercion from the Plaintiff to E.

B) Even if the Plaintiff’s act constitutes school violence under the School Violence Prevention Act, the instant disposition is a disposition that deviates from and abused discretion, considering the circumstances surrounding the act.

C) Therefore, the Disposition 1 of this case is null and void due to the existence of the above serious substantive defect.

(ii) procedural defects;

Pursuant to Article 17(5) of the School Violence Prevention Act, the autonomous committee and the defendant must complete appropriate procedures, such as granting the plaintiff and his/her guardian an aggressor student an opportunity to fully state his/her opinion before the resolution of the meeting of the autonomous committee of this case and the first

However, only one day before the meeting of the instant autonomous committee was notified of the fact that the Plaintiff was held verbally, and without accurately aware of the content of the report made by the E, the Plaintiff attended the meeting of the instant autonomous committee. Furthermore, the E’s parents asserted any other damage different from the content of the instant report made before the meeting of the instant autonomous committee, and the Plaintiff and the Plaintiff’s parents were not given an opportunity to properly explain it. The instant autonomous committee accepted the E’s claim for additional damage without undergoing the procedure to verify the authenticity of the report.

As above, it is reasonable to view that there exists a serious procedural defect in the meeting of the autonomous committee of this case and the disposition No. 1 of this case committed in violation of Article 17(5) of the School Violence Prevention Act.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

1) The resolution of the instant autonomous committee meeting and the process of the instant disposition

A) On February 7, 2017, the Plaintiff: (a) got injured on the part of the inner part of E while pushing the E from the sports site ice ice during the point trial period; and (b) on February 13, 2017, the parents of E requested the autonomous committee to convene a meeting on the part of the D Elementary School.

B) On February 15, 2017, the meeting of the instant autonomous committee was held on February 15, 2017, and the responsible teacher in charge of school violence reported to the members of the instant autonomous committee the "school violence case of a plaintiff" subject to the resolution of the meeting of the instant autonomous committee, and the major reported matters stated in the meeting minutes

▣ 사건1○ 사건 내용담임교사는 2016. 12. 22. E의 모와 전화통화를 하면서 원고가 10월경부터 지속적으로 E을 힘들게 했다는 이야기를 들음.O E 모의 진술 내용① 교실에서 놀자며, 급식을 안 먹은 적이 1회 있었음(이하 '이 사건 제1행위’라 한다).② 원고가 특활발표회 준비를 할 때 체육관에서 1학년 3반 F의 플루트를 치고도 E에게 사과하라고 해서 E이 대신 사과하였음(이하 '이 사건 제2행위'라 한다).③ 원고가 G과 함께 E에게 '바보, 멍청이'라고 이야기함(이하 '이 사건 제3행위'라 한다).④ 10월말에서 11월초 사이에 있었던 1학년 3반 생일파티 때, 원고가 바닥에 떨어진 젤리를 E에게 주워 먹으라고 하였음. E은 먹지 않았고, E의 모가 원고의 모에게 이야기하였으나, (원고의 모는) 우리 아이가 그럴 리 없다고 하심(이하 '이 사건 제4행위’라 한다).⑤ 원고가 함께 돌봄 교실을 하는 G에게 원고 자신의 숙제를 2장하라고 시킨 적도 있다고 함(이하 '이 사건 제5행위'라 한다).○ 담임교사 지도 사항2016. 12. 23. 원고, E 및 G을 각각 따로 불러서 사실을 확인함, 원고와 E은 이 사건 제1 내지 4행위가 모두 사실이라고 인정함, 원고와 G은 이 사건 제5행위는 사실이 아니라고 말함.○ 원고 및 E 측의 상반된 주장① E 쪽 주장E을 정서적으로 힘들게 하고, 친구 관계를 동등하게 보지 않은 생각으로 비롯된 행동임. 학교의 조정과 교육이 필요한 문제 사안임.② 원고 측 주장아이들 간의 성향과 성격 차이로 일어난 일이고 친구관계에서 흔하게 일어나는 갈등관계로 해당 아동과 부모끼리 해결할 수 있는 문제임.▣ 사건2○ 사건 내용원고, E 및 G이 2017. 2. 7. 점심시간에 운동장 빙판 위에서 놀다가 원고가 E에게 물을 한 잔 떠오라고 했고 이에 떠온 물을 빙판 위에 부으며 다시 놀이를 계속함, 도우미선생님이 빙판 위에서 놀지 말라고 주의를 주자, 장소를 옮겨서 다른 빙판 위에서 세 명이 치기 장난을 하다가 원고가 E을 밀침, E이 넘어지면서 안경이 부러지고 코 위에서부터 뺨 부위가 크게 긁힘, 원고는 E에게 즉시 사과함(위와 같이 원고가 운동장 빙판에서 E을 밀쳐 다치게 한 행위를 '이 사건 제6행위'라 한다).○ 원고 및 E 측의 상반된 주장① E 측 주장2016. 12.경 있었던 사건에 미루어볼 때 의도성을 가지고 밀었음.② 원고 측 주장아이들끼리 놀다가 일어난 안전사고임.

C) The autonomous committee acknowledged that the Plaintiff’s school violence case reported as above constituted school violence under the School Violence Prevention Act, and the Defendant took the first and second dispositions of this case in accordance with the resolution of the instant autonomous committee meeting, and the column for the measure to be taken is as follows.

○ The Plaintiff, on February 7, 2017, was unable to inflict an injury equivalent to two weeks prior to the front on the part of the inner part of the sports ground ice, in excess of E on February 7, 2017. The Plaintiff’s event of school violence, such as language violence and physical violence, which the Plaintiff continuously plays to E from October 2016 to December 201 of the same year. It takes into account the fact that the Plaintiff was not actively subject to the request of the E.

2) CCTV images related to the act No. 6 of this case

A) According to CCTV images around the 6th act of this case, following the following facts: (a) where the Plaintiff initially saw the instant cup, along with E, a sports ground; and (b) where E gams together with the Plaintiff’s gams from the Plaintiff, while playing in the same way, as the Plaintiff, the Plaintiff, E, and G C gams the ice gam on the ice as in the ice gambling, E was faced with the Plaintiff; (c) the Plaintiff was faced with the instant sports ground gambling; (d) E did not go against the Plaintiff; and (e) E did not go back with the Plaintiff; and (e) the Plaintiff did not go beyond the gambling of E once between the moment he wanted to go beyond the G, and (e) if the Plaintiff did not immediately look into the condition of the gambling with E, then the Plaintiff’s gambling.

B) At the time of the meeting of the instant autonomous committee, the autonomous committee recognized the instant 6 act as school violence under the School Violence Prevention Act. However, in order to select the type of disposition against the Plaintiff, the autonomous committee confirmed the CCTV of the school in the course of evaluating the “subject matter of school violence” pursuant to Article 2(1) [Attachment Table] of the Notice of Detailed Criteria applicable to each measure against school violence (Public Notice of Education No. 2016-96). However, although the Plaintiff’s power was pushed down, the instant 6 act was a simple accident that occurred while ASEAN (Plaintiff, E, and G) was playing, and it is unreasonable to view it as a school violence case.”

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 4, Eul evidence 3 and the purport of the whole pleadings

D. Determination

1) Determination as to the existence of grounds for disposition

A) Interpretation and application of the School Violence Prevention Act

The purpose of school violence is to protect the human rights of students and foster students as healthy members of society through the protection of victim students, the guidance and education of aggressor students, and mediation between victim students and aggressor students by prescribing matters necessary for the prevention of and countermeasures against school violence (Article 1). However, it is not desirable for students to use all conflicts or disputes arising in the course of school life as school violence. Article 2 subparag. 1 of the School Violence Prevention Act provides for the concept of "school violence" in detail, and Article 2 subparag. 1-2 of the same Act provides for the concept of "bullying", and Article 3 of the same Act provides that "in interpreting this Act, the rights of citizens shall not be unduly infringed," and it can be viewed as a provision to prevent any change in the concept of "school violence violence" due to the expanded interpretation of the concept of "school violence" and to prevent the occurrence of school violence from being subject to measures under the same Act depending on whether the act was committed as school violence and whether the act was committed in accordance with the concept of "school violence prevention act."

Therefore, in order for a school violence to constitute “school violence” under Article 2 subparag. 1 of the School Violence Prevention Act, it is reasonable to deem that the act committed in the daily life of a school constitutes intentional injury, assault, threat, insult, coercion, coercion, coercion, and other similar methods, and the case where a physical, mental, or property damage is inflicted by any similar method.

B) Determination 1.2

(1) Determination as to the first and second acts of this case

(A) The plaintiff asserts that in the case of the first act of this case, "the plaintiff's act of this case," late in the meal time by completing the art works, and the person who causes the meal service, only consented to the proposal of the plaintiff E, and in the case of the second act of this case, it is nothing more than doing harm to the apology instead of accepting the request of the plaintiff who caused the remaining students."

(B) While the Plaintiff asserts that E voluntarily responded to the Plaintiff’s proposal or request, there is no specific circumstance to deem that the Plaintiff had expressed abusive, verbal abuse, and exercise of force during the 1 and 2 acts of this case. The act of this case does not prevent the Plaintiff from eating school meals, but can sufficiently be conducted between school friendlys because the Plaintiff did not receive school meals only once. Thus, it is difficult to evaluate that the act of this case itself constitutes school violence. In the case of the act of this case 2, it is somewhat doubtful whether the Plaintiff need the Ftheme while strongly demanding the Plaintiff to force the Plaintiff to do so instead, and it is difficult to regard the act of this case as school violence under the School Violence Prevention Act.

(2) Determination as to the third act of this case

The Plaintiff itself acknowledges the fact that the act of this case 3 was committed on the part of the Plaintiff himself. However, the expression “Breh,” which the Plaintiff made to E, can be expressed in a fluorous manner, and there may be room for the Plaintiff to make a statement once again on one occasion due to a temporary dispute, extinguishment, etc. Therefore, insofar as the details of the Plaintiff’s statement to E, “Breh”, and the place, frequency, etc. of the statement are not specified, it is difficult to evaluate that the Plaintiff made the above statement to pro-Japanese by insult, bullying, and other similar methods, and that the school violence under the School Violence Prevention Act was committed by the Plaintiff.

(3) Determination as to the fourth act of this case

(A) The plaintiff asserts that "E is thought to have come into e to break up with the draft of diesel on the floor," and that it is merely a long time to make the same remarks as the instant No. 4, and it does not compel E to do so.

(B) The facts acknowledged earlier and the following circumstances revealed by Gap evidence No. 2, i.e., ① the place where the plaintiff performed the act of this case No. 4 appears to have been attended by several parents including the mother at the time. In such a situation, the plaintiff forced E to take a bath away from the floor at the time of the act of this case by force, and ② the mother of G who attended the meeting of the autonomous committee of this case as a witness of the committee of this case fell down to the degree of 'E' for eating and drinking a diesel. The plaintiff stated only a full text of the facts that "the plaintiff gave a diesel to E to make the act of this case and made the act of this case no parent of the plaintiff's act of this case except for E, ③ it appears that it appears that the plaintiff had been forced to do school violence under the School Violence Act by force or coercion method of violent abuse at the time of this case.

(4) Determination as to the 6th act of this case

In light of the following circumstances, which can be seen by comprehensively taking into account the facts acknowledged earlier and the overall purport of the pleading, i.e., ① the act of this case was occurred during the process of booming the Plaintiff, E, and G with each other on the sports ground ice, and, at that time, E was also engaged in an act of pushing ahead of G; ② the Plaintiff immediately examined the status of E; ③ the autonomous committee determined the act of this case as a simple accident; ③ the act of this case 6 was committed by the Plaintiff and E immediately before the 6 act of this case, and there is no situation to deem that the Plaintiff’s act of this case was sexually or forcibly committing the act of bullying, such as the Plaintiff and E going through the game of the Plaintiff and E, and it cannot be deemed that the act of this case was caused by the Plaintiff’s excessive excessive accident, and school violence under the School Violence Prevention Act with intent to inflict injury on the Plaintiff.

C) Sub-determination

Therefore, the first disposition of this case is not recognized as all the grounds for the disposition.

2) Determination as to whether it constitutes grounds for invalidation

The facts acknowledged earlier, and the following circumstances revealed in Gap evidence 2 including the purport of the entire argument, i.e., ① the autonomous committee determined that the 6th act of this case constitutes school violence under the School Violence Prevention Act even though it was unreasonable to regard it as school violence cases through CCTV image verification, and ② the 6th act of this case, such as accepting E’s school violence report immediately after the 6 act of this case, seems to constitute the most important reason for the 1th act of this case; ③ The remaining 1 to 4 acts of this case, which are the reasons for the 1st act of this case, clearly stated the following circumstances by each act of this case, by asserting that the Plaintiff’s guardian did not act by coercion or force at the meeting of the autonomous committee of this case, and there was no specific and objective circumstance to regard it as school violence under the School Violence Prevention Act by intimidation, insult, coercion, coercion, and method corresponding thereto. Furthermore, the remaining 1 to 4 acts of this case as the grounds for the 1 to 6th act of this case’s assertion without additional factual basis.

4. Conclusion

Therefore, among the lawsuits in this case, the part of the claim for nullification of the disposition No. 2 in this case is unlawful and dismissed, and the remainder of the plaintiff's claim is justified, and thus, it is so decided as per Disposition by the assent of all. According to the records of this case, it is recognized that there is an urgent need to suspend the validity of the above disposition in order to prevent the plaintiff from causing irrecoverable damage to the plaintiff due to the disposition No. 1 in this case, and there is no other evidence to find that the validity of the above disposition No. 1 in this case is likely to have a significant impact on public welfare due

Judge Park Jong-young

Judges Eslives

Judges Kim Sung-sung

1) At the time of the meeting of the instant autonomous committee’s meeting, the guardian of E made a statement about the additional school violence damages (such as the Plaintiff’s demand to do so as to do so) not mentioned in the report of the case of the responsible teacher at the time of the meeting of the instant autonomous committee. However, on June 19, 2018, the Defendant made a statement to the effect that the above additional school violence damages statement was merely an reference to reference, and it did not constitute the ground for the instant disposition No. 1 by recognizing the E’s guardian’s above additional school violence damages statement as a whole. Moreover, there is no specific evidence to acknowledge the above additional school violence damages other than the E’s statement by the guardian, and thus, it should not be acknowledged as the ground for the instant

2) The Plaintiff and G denied all the facts of the instant No. 5, as seen in the minutes of the instant autonomous committee meeting. In light of the fact that the Plaintiff and G denies the instant No. 5, as seen in the first and second dispositions of this case, only the victim was written E, it seems that the Plaintiff and G denied the instant No. 5, and that this part was not included in the instant disposition No. 1.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.