CONTENTS
- 1. Administrative Litigation Concerning School Violence | Procedures for Challenging a School Violence Committee Disposition
- 2. Administrative Litigation Concerning School Violence | The Administrative Adjudication System
- - Administrative Adjudication Procedure
- - Preparation of the Request Form and the Hearing Procedure
- - Examples of Specific Grounds for the Request
- 3. Administrative Litigation Concerning School Violence | The Administrative Litigation System
- - Documents to Be Submitted When Conducting an Administrative Litigation
- - Points to Note When Conducting the Challenge Procedure
- 4. Administrative Litigation Concerning School Violence | Tips for Drafting a Complaint in Administrative Litigation
1. Administrative Litigation Concerning School Violence | Procedures for Challenging a School Violence Committee Disposition
If you are considering an administrative litigation concerning school violence, we summarize the methods available for raising objections to a School Violence Committee disposition.
In school violence matters, under the School Violence Prevention Act an investigation is conducted through a dedicated body, and where necessary the School Violence Countermeasures Deliberation Committee (hereinafter the “School Violence Committee”) is convened and measures are decided.
A range of dispositions may be resolved upon as measures against the offending student, including a written apology, a prohibition on contact, completion of special education, transfer to another school, and expulsion.
As such measures are recorded in the student’s school records, they directly affect college admissions and employment.
The difficulty is that the School Violence Committee’s decisions are not always rendered fairly or upon a sufficient examination of the facts.
In some matters, it is common for the victim to instead challenge an outcome inconsistent with the facts, or for the offending student’s side to dispute the disposition as unjust in its severity. The law therefore provides avenues of administrative adjudication and administrative litigation so that a School Violence Committee disposition may be challenged.
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A request for judgment to cancel administrative dispositions for a school violence victim and an assailant was dismissed.
What are the disadvantages if you are punished for school violence?
Suspension of execution for assisting clients involved in school violence, including school volunteer work and completion of special education
2. Administrative Litigation Concerning School Violence | The Administrative Adjudication System
In school violence matters, the disposition that may typically be challenged is the decision on measures resolved upon by the School Violence Committee and notified by the school principal.
Measures take various forms, including a written apology by the school violence offender, a prohibition on contact, threats, and retaliation, a change of class, transfer to another school, expulsion, and special education for the guardian.
If you wish to challenge these, you may consider an administrative litigation concerning school violence, administrative adjudication, and the like.
Of course, the victim student’s side may also, where it determines that the School Violence Committee’s decision is insufficient for the recovery of the harm, request additional measures or challenge a lenient disposition imposed on the offending student.
In other words, where either the offender or the victim ‘does not agree with the outcome,’ the matter may be contested through administrative adjudication or administrative litigation.
Administrative Adjudication Procedure
Administrative adjudication is a system of relief whereby a citizen whose rights or interests have been infringed by an unlawful or unjust disposition or omission of an administrative agency files with an administrative body (the administrative adjudication committee of the relevant office of education) in order to obtain redress.
Because this is a procedure for challenging a disposition of the Superintendent of Education, who is an administrative agency, a request for administrative adjudication may be filed with respect to both national and public schools and private schools.
It must be filed within 90 days from the day on which one becomes aware that the disposition was made (and within 180 days from the day on which the disposition was made). Caution is required, as a request filed beyond this period may be rejected.
Becoming aware that a disposition was made means ‘actually coming to know’ of it; therefore, even if one learns of the result of the disposition in advance, before the notice of the decision on measures issued in the name of the Superintendent of Education is served, the filing period does not begin to run.
Preparation of the Request Form and the Hearing Procedure
The administrative adjudication request form must specifically state the information of the petitioner (the offending student or victim student), the name of the school, the content of the measure, the grounds for the objection, the facts of the matter, and the like.
In particular, the unlawfulness of the School Violence Committee’s decision (procedural defects, mistake of fact, violation of the principle of proportionality, and the like) must be explained in a logical manner.
Attached are a copy of the School Violence Committee’s resolution, a written statement organizing the facts of the matter, captured images of CCTV footage, statements from friends and parents, written opinions, and the like.
The administrative adjudication committee proceeds by way of a documentary hearing or an oral hearing, an oral hearing being one in which oral statements form the basis of the ruling.
If the administrative adjudication is granted, the School Violence Committee’s disposition is revoked or modified.
However, even if it is dismissed, the petitioner may again challenge the matter through administrative litigation.
Moreover, even where administrative adjudication has been requested, a decision on a stay of execution by the administrative adjudication committee is required in order to suspend the effect and execution of the disposition and the continuation of the procedure.
Examples of Specific Grounds for the Request
1) Mistake of fact
Although the petitioner did not inflict any physical harm on the victim student, only certain statements were reflected, so that the facts of the matter were distorted.
2) Procedural defect
In the course of the investigation, the petitioner and the guardian were not sufficiently afforded an opportunity to state their opinion, and the School Violence Committee was convened with key evidence such as CCTV omitted.
3) Violation of the principle of proportionality
The petitioner is a first-time offender, is showing remorse, and is in the process of amicably reaching a settlement with the victim student; nonetheless, transfer to another school is excessively severe and therefore unjust.
3. Administrative Litigation Concerning School Violence | The Administrative Litigation System
An administrative litigation concerning school violence may be filed even where administrative adjudication is available, without first going through such adjudication.
Administrative litigation is divided into types such as the revocation lawsuit, the lawsuit for confirmation of invalidity, and the lawsuit for confirmation of the illegality of an omission.
Its purpose is to provide relief for infringements of the rights or interests of citizens caused by an administrative agency’s unlawful disposition or the exercise or non-exercise of public authority, and to appropriately resolve disputes concerning legal relationships under public law or the application of the law.
Where a victim or offending student objects to a measure imposed by the Superintendent of Education, that student may file an administrative litigation.
In particular, a school violence victim may, if they object to measures such as psychological counseling and advice by experts within or outside the school, temporary protection, and a change of class, file an administrative litigation or administrative adjudication.
Documents to Be Submitted When Conducting an Administrative Litigation
- Copy of the School Violence Committee’s decision on measures (including the notice)
- Copy of the administrative adjudication ruling (where administrative adjudication was pursued)
- Basic personal particulars of the petitioner (plaintiff) (such as a certified copy of resident registration)
- Copies of the School Violence Committee’s minutes and investigation report (issued by the school)
- Complaint (for submission to the court)
- Other evidentiary materials (statement of the circumstances of the incident, guardian’s written opinion, captured conversations such as text messages, medical certificate, and the like)
Points to Note When Conducting the Challenge Procedure
An administrative adjudication or an administrative litigation concerning school violence is difficult to overturn by statements alone.
Objective materials such as text messages and KakaoTalk, social media, CCTV footage, and written statements from friends nearby are required.
In particular, where one seeks to prove that there was no offending conduct, or where the harm has been underestimated, evidence must be prepared all the more meticulously.
In addition, school life continues even during the challenge procedure.
The offending student may have to carry out measures such as transfer to another school, suspension of attendance, and completion of special education, and as the victim student must also continue attending school, protective measures must be undertaken in parallel so that secondary harm does not occur.
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4. Administrative Litigation Concerning School Violence | Tips for Drafting a Complaint in Administrative Litigation
Both the victim and the offender in a school violence case may, through administrative adjudication, an administrative litigation concerning school violence, and the like, once again contest the fairness and reasonableness of a School Violence Committee disposition.
A school violence record does not disappear within a short period and may leave a blemish on a student’s future; we therefore encourage you to make timely use of the challenge procedures guaranteed by law.
Organizing the facts of the matter, preparing evidence, drafting a request form that conforms to the procedure and observing the deadlines, and a systematic response with the assistance of a school violence attorney and the like are important for both the victim and the offender.
By making prudent use of the challenge procedure against a School Violence Committee disposition, we encourage you to seek out ways to ensure that no unreasonable outcome remains.
