From Forced Transfer to Damages…The Legal Procedures That Continue After School Violence

In school violence matters, not a few parents think the dispute is over once the School Violence Countermeasures Deliberation Committee's measures are imposed or the police investigation is wrapped up. However, in practice, even after the committee's measures, disputes sometimes continue into administrative appeals and administrative litigation, civil damages claims, juvenile protection procedures, or criminal proceedings.

The first procedure reviewed is an objection to the school violence measure result. If there is an objection to the committee's measure, an administrative appeal or administrative litigation can be considered. An administrative appeal must be filed within 90 days from the day one becomes aware that a disposition has been made, and in principle cannot be filed once 180 days have passed from the day the disposition was made. In the case of administrative litigation, a revocation suit must be filed within 90 days from the day one becomes aware of the disposition and within 1 year from the day the disposition was made. Missing the deadline may limit the opportunity for objection, so a prompt review is needed after receiving the notice of the measure decision.

Administrative appeals and administrative litigation differ in nature. An administrative appeal is a procedure for seeking a re-judgment on an administrative agency's disposition, and depending on the matter, revocation or modification of the disposition can be sought. On the other hand, administrative litigation is a procedure for contesting the illegality of a disposition before a court, and generally whether the disposition is revoked becomes the core issue. Therefore, which procedure is appropriate must be decided by comprehensively examining the content of the matter, the evidentiary relationship, the level of the measure, and the impact on the student's future school life.

There are also cases in which a civil lawsuit for damage recovery follows, separate from criminal punishment or the school's measures. In a civil damages claim, actual losses incurred such as treatment and counseling costs, future treatment costs, and consolation money for emotional distress can become issues. Proving the causal relationship between the harm and the loss is important, and the committee's notice of the measure decision and materials related to the deliberation result can be used as important reference materials in the civil lawsuit. If the facts and evidence are not properly organized at the early committee stage, it can act unfavorably in the later civil procedure.

The procedure also differs depending on the offending student's age. A quasi-juvenile aged 10 or older but under 14 is not subject to criminal punishment but may be subject to juvenile protection procedures. Juvenile protection procedures aim at education and rehabilitation rather than punishment, but depending on the matter, protective measures such as probation, an attendance-center order, a community service order, or transfer to a juvenile reformatory may be imposed. If aged 14 or older, criminal responsibility is recognized and one may be subject to criminal proceedings, and depending on the nature and seriousness of the case, it may lead to transfer to the juvenile division or a criminal trial.

What is commonly important across the various procedures is securing objective evidence. In legal disputes, it is difficult to have the facts recognized based on a party's assertions alone. KakaoTalk conversation histories, text messages, SNS posts, audio recordings, CCTV footage, medical certificates, counseling records, materials related to school life records, and fact-confirmation materials from the homeroom teacher or counseling teacher can influence the judgment on the issues. Because records that seem trivial at the early stage of an incident can later become important evidence in administrative, civil, and criminal procedures, it is necessary not to arbitrarily delete materials and to preserve them as far as possible.

Attorney Cho Young-sam of Daeryun LLC said, "A trial can be a procedure for clearing up a grievance or correcting a wrongful disciplinary measure, but in actual cases, what matters is how well the facts and evidence are organized at the committee and early investigation stages that precede the trial," adding, "One needs to establish a response strategy while jointly considering the possibility that, from immediately after an incident occurs, it may lead to administrative, civil, and criminal procedures."

A school violence matter can simultaneously raise issues of educational resolution and legal responsibility. Because objecting to the measure result, recovering the harm, and responding to criminal proceedings each have different requirements, deadlines, and methods of proof, one must approach them by distinguishing the procedures case by case.

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