2015 Gohap6947 Nullification of a transfer disposition

A

Since it is a minor, the legal representative B, MoCC

School Foundation D

May 11, 2016

July 20, 2016

1. On October 29, 2015, the Defendant confirmed that a transfer measure against the Plaintiff was invalid. 2. The costs of the lawsuit are assessed against the Defendant.

The same shall apply to the order.

1. Basic facts

A. The Plaintiff and the victim student are students attending the second grade E High School operated by the Defendant (hereinafter referred to as “Defendant School”), and are students attending the Defendant’s school for convenience of taking measures against the principal of the Defendant. (b) On October 28, 2015, the Autonomous Committee on Countermeasures against School Violence (hereinafter referred to as the “instant autonomous committee”) opened a meeting of the Autonomous Committee on Countermeasures against School Violence on August 28, 2015, and “the Plaintiff lent a bus to the second grade vessel during the school hours on August 21, 2015, to the second grade vessel, it was difficult for the Plaintiff to take measures for preventing school violence (Article 10(1)5) at the toilet at the time after the school’s first and second class vessel’s first class vessel’s school hours, and it was difficult for the Plaintiff to take measures for preventing school violence (Article 10(2)7(1)5) at the time of the Plaintiff’s special measure for preventing school violence (Article 17(2)9(7)) of the School Act).

The transfer measure of this case was notified. The fact that there was no dispute about the recognition, Gap evidence 2, Eul evidence 4, and the purport of the whole pleadings.

A. The plaintiff's assertion

In light of the fact that fightings occurred between the Plaintiff and the victim was contingent, the Plaintiff’s mistake is against the Plaintiff, and the Plaintiff’s parent also gave 40 million won agreed upon to the victim’s side and dies, the instant transfer measures are invalid beyond the discretionary scope.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) As seen earlier, the Plaintiff’s act of violence was completely incidental to the Plaintiff’s act of violence, such as: (a) the Plaintiff suffered physical and mental injury due to the Plaintiff’s act of violence on August 21, 2015; and (b) the Plaintiff suffered injury for three weeks; (c) the Plaintiff’s act of causing school violence was very serious; and (d) the Plaintiff’s act of causing school violence; and (e) the Plaintiff’s act of causing school violence was stated in the evidence Nos. 1 and No. 5; and (e) the fact-finding on the Defendant’s school at this court; and (e) the following circumstances, which can be known to the purport of the entire argument as to the Defendant’s result of the fact-finding on the Defendant’s school at this court; and (e) the Plaintiff did not participate in a verbal dispute with the victim’s school; and (e) finding the victim at the time after the first school session, it is difficult to view the victim’s act of violence as seen earlier, and thus, there was a need to reduce the Plaintiff’s transfer from the Plaintiff’s source.

2) However, as stipulated in Article 17(1) of the School Violence Prevention Act and Article 19 of the Enforcement Decree of the same Act, measures against aggressor students shall be determined by comprehensively taking into account the seriousness, sustainability, and intention of the school violence exercised by aggressor students, the degree of reflectability of the aggressor student, the possibility of leading the aggressor student due to the pertinent measures, the degree of compromise between the aggressor student and his/her guardian, and whether the victim student is a disabled student.

However, in light of the following circumstances, the evidence Nos. 1 through 3, and No. 4, comprehensively considering the purport of the pleading as a whole, it is reasonable to view that the transfer of this case, even if considering the necessity of disciplinary action against the Plaintiff, which deprived the Plaintiff of the opportunity to receive education at the relevant school by leaving the school, without giving the Plaintiff an opportunity to open, out of the type of disciplinary action, was excessively harsh, and thus, deviates from or abused the scope of discretion.

(1) The head of a school, who is an educational expert, shall be respected to the maximum extent to which disciplinary measures have been taken for the purpose of education and the maintenance of order in the school, but since appropriate balance permitted by social norms is required between grounds for disciplinary action and disciplinary measures, the disciplinary measures against the

② Since Defendant school is in the position of guiding and educating both victim students and aggressor students, it is obligated not only to protect victim students to prevent any further damage, but also to foster them as sound members of society by leading and educating aggressor students. Therefore, the Plaintiff and aggressor students, such as the Plaintiff, who have caused serious damage, are obliged to take the best educational means in consideration of the students in the process of human maturity.

(3) For the protection of victim students and the guidance and education of aggressor students, Article 17(1) of the School Violence Prevention Act provides that measures that can be taken against aggressor students shall be taken in writing against victim students, prohibition of contact, intimidation, and retaliation against victim students and reported or accused students, service at schools, community service, special education course by internal and external experts, or psychological treatment, suspension of attendance, change of class, expulsion, and expulsion from school, such as in-depth education, etc. This means that the defendant school responsible for the education site has provided the maximum guidance and education to aggressor students, and as such, it is difficult for victim students and aggressor students to receive the education at one school, and as such, it is deemed impossible for them to receive the education at one school, and the guidance and education of aggressor students are deemed impossible.

④ The Plaintiff’s act of violence occurred in a dispute with a victim student who was at the same time during his/her school hours on August 21, 2015, and the Plaintiff’s act of violence is difficult to be deemed to have continuously exercised the victim student’s intent to bullying. In fact, the Plaintiff’s act of physical violence before and after August 21, 2015 does not seem to have been peeped.

(5) The Plaintiff’s violence causes an injury to which the victim is in need of three weeks’ medical treatment. However, inasmuch as the Plaintiff and the victim were fighting with each other and the victim suffered an injury to the victim, it is necessary to punish the aggressor student less heavily than unilaterally exercising violence against the victim.

6) The Plaintiff reflects his/her mistake and expressed his/her intention to the victim in writing, and both the Plaintiff’s parents and the Plaintiff’s parents, on September 16, 2015, take school life in the future and maintain a good relationship with other academic generations. Both of the two students are the parties to the Autonomous Committee on Countermeasures against School Violence. Both of the two students and parents consistently agree that the Plaintiff’s mistake is necessary to take place in the school and lead the Plaintiff.

(No. 2015, the instant autonomous committee decided to request a change of schools by considering the importance of the Plaintiff’s continued use of violence against victim students on August 21, 2015 at the meeting held on October 28, 2015 (the parent of victim students also agreed that the victim student’s parents should not be opened, but the victim student’s parents and the victim student’s parents should not be opened, and thereafter, the Plaintiff exercised a verbal violence against the victim student and requested a change of schools). However, it appears that there was no specific discussion on the course, contents, frequency, etc. of the speech violence that the Plaintiff exercised against the victim at the time of the foregoing meeting, and materials related thereto were not submitted in the instant lawsuit. In addition, it is inappropriate to consider the situation that the Plaintiff exercised the victim student at the meeting held on August 21, 2015.

8) In determining the possibility of leading an aggressor student, it is also important to consider how the aggressor student lives in the school at ordinary times. However, the instant autonomous committee did not peep into the situation in which the deliberation attitude of the aggressor student was examined at the meeting held on October 28, 2015, and no data was submitted to show that the Plaintiff had left the Plaintiff’s usual attitude. Of these, it is harsh to exclude the Plaintiff’s possibility of leading, and take measures for changing schools at once, once the act occurred on August 21, 2015. Considering the motive and form of the act of violence, the degree of reflection against the harmful act, etc., it is difficult to conclude that the Plaintiff is a student with violence to the extent that the correction is impossible, and rather, if the Defendant school educates the Plaintiff by an appropriate method and leads the Plaintiff, it seems that it is possible for the Plaintiff to grow as a student with personality, such as the Plaintiff’s own depth, and the Plaintiff to have a mature growth.

① The instant transfer measure is a disciplinary measure that deprives the Plaintiff of both the outcome, friendship, and relationship that the Plaintiff had been taken within the school so far, and constitutes a heavy disciplinary measure following expulsion. In the event the instant transfer measure is realized as is, the Plaintiff may not only go against the difficulties to adapt to a new educational environment in the short term, but also lead to the lack of a healthy relationship with the new students due to the recognition that the Plaintiff was a student who has been transferred to school due to school violence, nor may it be likely that the Plaintiff may be exposed to school violence. Moreover, the Plaintiff may have suffered considerable disadvantage in the university research, thereby hindering the future selection.

A transfer measure taken by the Defendant against the Plaintiff on October 29, 2015 is null and void, and as long as the Defendant contests this, there is a benefit of confirmation.

However, the meaning of confirming the invalidity of the transfer measure of this case is sufficient reasons to punish the plaintiff, and the request for disciplinary action of the victim is extremely justifiable, but it is not an act of violence of the plaintiff because it is illegal to select the extreme heavy disciplinary measure for the plaintiff's future without choosing any more educational disciplinary method for the plaintiff. Therefore, even if the transfer measure of this case is invalidated, the defendant school must take appropriate disciplinary action again so that the plaintiff can repent his mistake and commit a crime against the victim student, and at the same time, take sufficient measures to protect the victim student by respecting the appraisal of the victim's damage, and respecting the victim's emotional violence. In particular, since the victim is dissatisfied with the damage caused by the plaintiff's speech violence, the defendant school must investigate the language violence of the plaintiff and continuously guide and educate the plaintiff so that the plaintiff does not exercise the speech violence of the victim student. The plaintiff also needs to be able to take full account of the behavior that the victim student gets divided into his mistake and should not have any inconvenience in his school life.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition by admitting it.

The Chief Judge of the Korean Judge;

Judges Egrification

Judges Lee Jin-han