Case on the Repeal of the Korean Bar Examination Act

[2012Hun-Ma1002, 2013Hun-Ma249, 2015Hun-Ma873, 2016Hun-Ma267 (consolidated), September 29, 2016]

In this case, the Constitutional Court held that Article 2 of the Addenda to the National Bar Examination Act, which prescribes that the Korean Bar Examination Act be repealed, does not infringe upon the complainants’ freedom of occupation.

Background of the Case

The complainants, who are attending colleges of law or preparing for the Korean Bar Examination and aim to become legal professionals by taking the Korean Bar Examination, filed constitutional complaints on the grounds that Article 1, Article 2 and Article 4 Section 1 of the Addenda to the National Bar Examination Act, which prescribes that the Korean Bar Examination Act be repealed as of December 31, 2017, infringe upon the complainants’ freedom of occupation, right to hold public office, and right to equality.

Subject Matter of Review

The subject matter of this case is whether Article 2 of the Addenda to the National Bar Examination Act (Act No. 9747, May 28, 2009) infringes upon the fundamental rights of the complainants. The Instant Provision reads as follows:

Provision at Issue

Addenda to the National Bar Examination Act (Act No. 9747, May 28, 2009)

Article 2 (Repeal of Other Acts)

The Korean Bar Examination Act shall be repealed.

Summary of the Decision

The legislative purpose of the Instant Provision is to stabilize legal education and train legal professionals with expertise and global competitiveness, so as to provide high-quality legal services and enable the efficient allocation of the nation’s workforce. Thus, it serves a legitimate purpose. In order to achieve this legislative purpose, it has been decided that legal professionals will be ‘trained through education’ instead of ‘selected by examinations,’ and that the Korean Bar Examination will be gradually repealed after providing persons who were preparing for this test with the opportunity to take it for a certain period. This is an appropriate means to achieve the aforementioned legislative purpose.

The Constitutional Court has already held (2009Hun-Ma608, etc., April 24, 2012) that administering the Korean Bar Examination alongside the National Bar Examination will make it difficult to achieve the legislative purpose of stabilizing legal education, and that the Act on the Establishment and Management of Professional Law Schools provides measures for people who need financial aid. If the Korean Bar Examination is maintained along with the professional law school system and a large number of applicants pass, the purpose of adopting the professional law school system will be greatly undermined, while there would be no reason to maintain the Korean Bar Examination if only a small number of people pass.

From the viewpoint of the people who intended to prepare for the Korean Bar Examination, the reliance interest that it will be maintained has been altered or has ceased to exist after the Instant Provision was enacted, declaring the repeal of the Korean Bar Examination. In the course of repealing the Korean Bar Examination and adopting the professional law school system, the legislator has set a grace period of eight years to protect the confidence of those who were preparing for the exam. In fact, maintaining the Korean Bar Examination would actually undermine the confidence of those who have entered or are

preparing for admission to professional law school assuming that the Korean Bar Examination will be repealed, or educational institutions authorized for and operating professional law schools.

Some universities that run professional law schools have been criticized for the unfairness of their admission processes or substandard curricula. At this stage, however, collective efforts are required to help these professional law schools become established, in accordance with the purpose of their foundation. It is hard to say that professional law schools are currently being run in a manner that infringes upon the fundamental rights of the complainants. Judging by the above, the restriction of the freedom of occupation imposed by the Instant Provision does not run contrary to the rule of minimum restriction.

Moreover, the public interest that the Instant Provision seeks by training legal professionals through education, under the precondition that the Korean Bar Examination is repealed and the professional law school system is adopted, outweighs the disadvantages imposed on the complainants by the Instant Provision, thus satisfying the balance of interests.

Therefore, the Instant Provision does not infringe upon the complainants’freedom of occupation.

Summary of Dissenting Opinion of One Justice

1. Whether the Freedom of Occupation Has Been Infringed Upon

The Korean Bar Examination system fully satisfies the goal of ‘training legal professionals through education,’ since in conjunction with the Judicial Research and Training Institute it provides the best education, combining theory and practice. Therefore, the legislative purpose of the Instant Provision is merely a superficial pretext to justify repealing the Korean Bar Examination or adopting the professional law school system. There are no grounds to prove that legal professionals trained under the professional law school system are more competitive

and superior to those selected through the Korean Bar Examination. The professional law school system also falls short of the Korean Bar Examination in terms of the diversity of social background or values. Therefore, the appropriateness of means is not satisfied.

Professional law schools inevitably adopt a high-cost structure, and there are fundamental limitations in solving the issue of high tuition fees through special admissions or scholarships. They have also lost credibility in terms of fairness, on account of their unfair admission procedures, poor management of academic affairs, etc. The social problem of ‘jobless people preparing for the Korean Bar Examination’ has merely turned into a problem of ‘jobless people preparing for law school’ or ‘jobless people preparing for the National Bar Examination.’Meanwhile, the reality is that the three-year curriculum is overwhelminglyshort for training legal professionals learned in theory and practice, and is failing to produce talented, competitive legal professionals.

More moderate measures are available for solving the problems related to the Korean Bar Examination, such as limiting the qualifications required to take the exam or the number of times one can apply, or raising the acceptance rate. Furthermore, not only does maintaining the Korean Bar Examination present an effective solution to the side effects incurred by the exclusivity of professional law schools in terms of training legal professionals, but it also encourages friendly competition, which would be beneficial to the public who are on the receiving end of legal services. The repeal of the Korean Bar Examination does not simply stop at infringing upon the freedom of occupation of those who wish to become legal professionals, but infringes severely upon public interests by deepening distrust and enmity between classes and undermining social integration, thus leading to a loss of balance ofinterests. Therefore, the Instant Provision infringes upon the complainants’freedom of occupation.

2. Whether the Right to Hold Public Office Has Been Infringed Upon

According to the Court Organization Act and the Prosecutors’ Office Act, those without a lawyer’s license cannot be appointed as judges or prosecutors, meaning that those without the financial means to attend professional law school cannot acquire a lawyer’s license, and thus lose the opportunity to be appointed as a judge or a prosecutor. Thus, the right to hold public office is infringed upon.

3. Whether the Right to Equality Has Been Infringed Upon

The Instant Provision imposes a grave restriction on the freedom of occupation, and thus the principle of proportionality should be applied to the purpose and means of differential treatment under the strict scrutiny standard. The Instant Provision lacks proportionality between its legislative purpose and means, and therefore infringes upon the right to equality of the complainants, who have no financial means to attend professional law school.

Summary of Dissenting Opinion of Three Justices

1. Whether the Freedom of Occupation Has Been Infringed Upon

The Korean Bar Examination and the professional law school system are not incompatible, and it cannot be said that one is exceptionally better than the other, since each has its flaws and merits as a system for training legal professionals. In fact, if the two systems are left to compete by promoting their merits and find ways to remedy their flaws, talented people from diverse social backgrounds will be able to become legal professionals and help promote the rights and interests of the public. The professional law school system currently in force, which prevents those who have not attended professional law school from becoming legal professionals once the Korean Bar Examination is

repealed, goes beyond the limits of legislative discretion by eliminating the many merits of the Korean Bar Examination by repealing it, despite there being more moderate measures that can solve the flaws of this system.

The disadvantage imposed by repealing the Korean Bar Examination upon those who have no financial means to attend professional law school is as grave as the public interests it seeks. Therefore, the Instant Provision infringes upon the complainants’ freedom of occupation.

2. Whether the Right to Hold Public Office Has Been Infringed Upon

The Court Organization Act and the Prosecutors’ Office Act do require a lawyer’s license for one to be appointed as a judge or a prosecutor, but such appointments are in line with the requirements and procedures set forth by the above Acts, and the connection to the Korean Bar Examination is merely incidental. Thus, the Instant Provision does not infringe upon the right to hold public office of the complainants.

3. Whether the Right to Equality Has Been Infringed Upon

The Korean Bar Examination has been repealed due to the Instant Provision, and as a result, professional law schools have become the only pathway to becoming a legal professional, which means that thisqualification entitles privileged treatment based upon financial background.This cannot be merely considered asde factodiscrimination, since it has occurred on account of a change in the normative state in the form of the repeal of the Korean Bar Examination. Instead of giving a head start for the financially vulnerable, repealing the Korean Bar Examination eliminates their chances of becoming legal professionals and consequently undermines formal equality, thus infringing upon the right to equality of the complainants.