Constitutional Reconciliation of Restorative Justice and Retributive Sanctions : Focusing on the Normative Integration of School Violence Deliberation Procedures and the Jinsim-Tongsim (Heart-to-Heart) Program

Abstract

The legal framework governing responses to school violence constitutes a normative domain in which a balance must be struck between two constitutional imperatives: the State’s positive obligation to protect the fundamental rights of victimized students and the requirement that restrictions imposed on offending students satisfy the principle of proportionality. This Article argues that prior discussions in this field have tended to rely on a symmetrical framework that pits the victimized student’s right to education against that of the offending student, and contends that the analysis should instead begin by identifying, with greater specificity, the particular fundamental rights implicated on each side. For victimized students, the rights directly infringed include the right to physical integrity, the personality rights, the right to privacy, and the right to sexual self-determination, while the infringement of the right to education is derivative of those primary violations. By contrast, constitutionally significant restrictions on offending students are largely confined to measures such as suspension from attendance for an indefinite or potentially prolonged period, the combined effects of recording and retaining disciplinary measures in school records and reflecting them in university admissions, and measures such as written apologies that compel the formation or expression of an internal state of mind. Once the relevant rights are identified in this manner, the constitutional balancing between the two sides can no longer be understood as symmetrical; rather, the more serious the infringement of the victimized student’s legally protected interests, the greater the constitutional priority that must be accorded to the protection of the victimized student. Although the Deliberative Committee to Deal with School Violence occupies a pivotal position in proceedings that may culminate in adverse administrative measures, the governing statutes and regulations do not adequately guarantee essential requirements of due process, including the substantive sufficiency of prior notice, the right to assistance or representation, and clear rules governing voting quorums. Recent lower-court decisions have increasingly annulled such dispositions on the grounds of procedural violations and breaches of the principle of proportionality. Likewise, the Dedicated School Violence Investigator System, introduced in 2024, remains deficient in normative safeguards designed to ensure fairness and impartiality in the investigative process. Meanwhile, the newly introduced Jinsim-Tongsim Program is significant insofar as it seeks to embody the principles of restorative justice, and its initial implementation has produced discernible positive outcomes. Nevertheless, the Program entails structural risks of infringing students’ right to informational self-determination and personal autonomy because of the uncertain legal basis for its operation, the absence of sufficiently meaningful and voluntary consent, inadequate safeguards governing the processing of sensitive personal information, and the lack of mechanisms preventing statements made during restorative mediation from being subsequently used in investigative, deliberative, or disciplinary proceedings. These deficiencies stem from a structural feature of the current legal framework: although retributive and restorative mechanisms coexist, there is a pronounced asymmetry in the normative density of the rules governing the two domains.