School Violence Criminal Complaint

A school violence case becomes a formal matter when it is reported or accused to a teacher, the National Police Agency, or the 117 School Violence Center, among others.

Where the school principal finds it difficult to resolve the matter internally, a School Violence Committee (Hakpok-wi) is established, and proceedings to impose a school violence disciplinary disposition are conducted.

Depending on the matter, measures such as a written apology to the victim, a no-contact order, a change of class, or a transfer to another school may be imposed on the offending student.

However, as this amounts to no more than internal school discipline, if the facts of a crime such as assault, bodily injury, or a sexual offense are clear, a separate criminal complaint may be filed with the police.

The School Violence Committee process proceeds separately from the criminal complaint, and although there are cases in which the school discourages a criminal complaint, arguing that the committee's measures are sufficient, the victimized student's right to file a criminal complaint is guaranteed.

The victimized student, or the student's legal representative (guardian), must personally file the criminal complaint over school violence with the police.

In the complaint, the facts of the harm should be set out concretely in the order of date and time, place, and method, and the secured evidence should be attached.

Once the criminal complaint is received, the police investigate the offending student and the victimized student separately. A guardian may be present during the investigation, and the recording of statements is conducted as a rule.

If the offending student's offense is proven, the case proceeds to a juvenile protection trial before the juvenile court or to a criminal trial.

A person under 14 may receive only a protective disposition under the Juvenile Act, but a person aged 14 or older may, after referral to the juvenile court, receive a protective disposition or criminal punishment.

The offending student's side stands trial under the Criminal Act for assault, intimidation, bodily injury, rape, indecent act by compulsion, and the like.

Even though juvenile protective dispositions such as probation and a community service order are more common than an actual custodial sentence, if the victimized student's side wishes for severe punishment, it should not express any intention to settle.

Under Article 43 of the Juvenile Act, where, following a criminal complaint over school violence, a protective disposition or the like is manifestly unjust, or there is a violation of law or a serious misapprehension of fact bearing on that decision, an appeal may be filed.

1. Period for filing an appeal : 7 days
2. Submission of the notice of appeal : submitted to the original juvenile court
3. Appellate proceedings : where the appeal is without merit, dismissal; or revocation of the original decision followed by remand to the original juvenile court, etc.
4. Stay of execution : an appeal does not have the effect of staying the execution of the decision (Article 46 of the Juvenile Act)
5. Re-appeal : against a decision dismissing an appeal, a re-appeal to the Supreme Court is possible in the case of a violation of law

If the facts of the offense are clear, it is important to seek leniency through a settlement with the victim.

On the other hand, if the facts differ or the complaint is false, rebutting evidence must be prepared promptly.

Recordings of conversations with the victimized student and statements from witnesses may also be useful to the offending student in proving innocence, so securing them should not be neglected.

If a student who has committed school violence is 14 or older, the student is subject to the Juvenile Act and at the same time subject to the Criminal Act.

Accordingly, the student may receive a protective disposition or criminal punishment.

A judge of the juvenile division of the court may examine the juvenile protection case and impose a protective disposition; unlike criminal punishment, no criminal record or the like remains, so it does not adversely affect the juvenile's future.

Where the risk of reoffending is low and a settlement is reached, the matter may be concluded with a relatively light disposition; however, because it remains on record separately from the school's internal disciplinary record, a careful response is required.

After a criminal complaint over school violence has proceeded, following the hearing, the disposition the offending student may receive is one of: non-disposition (closure of the case), a protective disposition, or criminal punishment after referral to the prosecutor.

The types of protective disposition are as follows, and several protective dispositions may be combined and decided together.

As a general rule, in a case in which an offender has received a protective disposition and the hearing thereof has been decided, a public prosecution may not again be instituted, nor may the case be referred to the juvenile court.

This is a decision to refer the case to the prosecutor where, as a result of the investigation or hearing in the juvenile protection trial, facts constituting a crime punishable by imprisonment without labor or a heavier penalty are found, and, in light of the motive and nature of the offense, it is recognized that criminal punishment is necessary.

Where a minor aged 14 or older but under 19 commits a crime punishable by imprisonment for a definite term of two years or more at the maximum, in imposing imprisonment with labor the term may not exceed 10 years at the maximum and 5 years at the minimum.

In addition, a minor who was under 18 at the time of committing the crime may not be sentenced to death or life imprisonment, and in such a case shall be sentenced to 15 years of imprisonment for a definite term.

Apart from the procedures following a criminal complaint over school violence, not only does School Violence Committee discipline follow, but there is also a high likelihood that civil litigation will ensue.

In this case, through sincere reflection and efforts to recover the harm by means of a settlement payment, submission of a letter of reflection, and participation in counseling and treatment, the level of discipline may be lowered.

As a rule, contact with the victim's side should be conducted through defense counsel, and care must be taken because direct contact may be perceived as secondary harm.