Case on Non-Disclosure of Bar Examination Scores

[27-1(B) KCCR 513, 2011Hun-Ma769, 2012Hun-Ma209ㆍ536(consolidated), June 25, 2015]

In this case, the Constitutional Court held that Article 18 Section 1 of the National Bar Examination Act which prohibited disclosure of bar examination scores violated the Constitution, infringing complainants’ right to know (right to demand disclosure of information).

Background of the Case

Complainants have passed national bar examination or were attending law schools at the time of filing this constitutional complaint. They filed this constitutional complaint arguing that Article 18 Section 1 of the National Bar Examination Act which prohibited disclosure of bar examination scores infringed on their fundamental rights including the right to know.

Provision at Issue

The subject matter of this case is whether the main text of Article 18 Section 1(underlined part) of the National Bar Examination Act (revised by Act No. 10923 on July 25, 2011; hereinafter, the Instant Provision)violates the Constitution as infringing upon the complainants’ fundamentalrights. The provision at issue in this case is as follows:

Provision at Issue

National Bar Examination Act (revised by Act No. 10923 on July 25, 2011)

Article 18 (Non-Disclosure of Examination Information) (1)The scores of the Examination shall not be disclosed to anyone including the

applicants: Provided, That a person who failed the Examination may request the Minister of Justice to disclose his/her Examination score within six months after the date of the announcement of successful candidates.

Summary of the Decision

1. Fundamental rights to be limited

The Instant Provision limits complainants’ right to know who passed the bar examination as it stipulates non- disclosure of bar exam scores of people who passed the exam.

2. Whether the Instant Provision violates the rule against excessive restriction

The Instant Provision was legislated to prevent excessive competition over the rankings among law schools through prohibiting the disclosure of bar examination scores and to train competent and professional attorneys with expertise in various fields through ensuring proper management of legal education. Such legislative purposes of the Instant Provision are considered legitimate.

However, the rankings of law schools can be more deeply set in by the non-disclosure policy of bar exam scores under the Instant Provision as there is no other objective alternatives to evaluate bar exam passers’ ability, which may result in evaluating newly admitted lawyers’ ability simply based on their law schools’ rankings. Also, as law school grades become the most important factor in legal employment, it is expected that most students may choose courses from which they can easily get good grades and as a result, specialized education programs prepared by each law school cannot be properly maintained. Students’ priority in choosing their law schools will go to the existing university or law school rankings regardless of whether a specific law school provides

specialized programs that accommodate their academic or practical interests. From the perspectives of law schools, it becomes difficult to know their students’ relative weakness in specific subjects and gets harder to achieve their purpose of training competent and professional attorneys with expertise in various fields. Meanwhile, it is also argued that the disclosure of examination scores may lead students to focus only on bar exam preparation but we think it is natural for law students to do their best to achieve decent scores in examination and the non-disclosure of bar examination score does not necessarily make law students pay less attention to their bar exam preparation. Rather, such disclosure of exam score will be helpful in training competent legal experts and in providing an objective standard for hiring them. Therefore, the Instant Provision cannot be considered as appropriate means to achieve the legislative purposes as it causes side effects such as entrenching the existing hierarchies in school rankings while failing to fulfill the legislative purposes.

The legislative purposes of normalization of legal education, education of competent legal experts or prevention of excessive competition among law schools can be achieved by other means without restricting the right to know, such as providing wide range of specialized programs and strict management of academic affairs. In this regard, the non-disclosure of examination scores stipulated in the Instant Provision fails to fulfill the element of least restrictive means.

While the public interests to be pursued by the Instant Provision are not achieved by the non-disclosure of examination scores, and the disclosure of such scores does not prohibit the achievement of the public interests, the right to know of bar exam applicants is restricted by the non disclosure of examination scores. Therefore, the Instant Provision also fails to strike balance between legal interests.

Summary of Dissenting Opinion by Two Justices

1.Whether the Instant Provision violates the principle against excessiverestriction

The legislative purposes of the Instant Provision to train competent and professional attorneys with expertise in various fields through ensuring proper management of legal education and to prevent excessive competition over rankings among law schools through prohibiting disclosure of bar examination scores are legitimate.

If the bar examination scores are not disclosed, evaluation of applicants can be conducted based on various standards such as law school curriculum taken by the applicants, school activities or academic achievements, which would lead law students to focus more on the development of personality, rather than on simply getting higher marks in exams. Therefore, the non-disclosure policy of the Instant Prevision is a proper means of achieving the legislative purposes.

If bar examination scores are disclosed, applicants cannot help concentrating more on preparing for the bar examination to get decent scores. Given the purpose of introducing law school system in Korea, the legislative decision not to disclose bar exam scores for the soft-landing of the new system seems to be reasonable. Also, it is hard to conclude that the disclosure of bar examination scores itself based on limited information, such as applicants’ alma mater, accumulated for a short period of time is the very cause of solidifying hierarchies in law school rankings. And applicants’ bar exam scores cannot be considered as an objective standard for hiring lawyers, reflecting their academic performance at their law schools.

Given the facts that the decision as to whether the examination scores of bar exam passers are disclosed or not should be made depending on the specific situation of the society such as history, purposes and realities of lawyer selection system; the current law school system was introduced to eradicate the hierarchical ranking structure and excessive competition

found among universities and colleges; and the bar exam scores are not the conclusive and ultimate standard for evaluating lawyers’ abilities, the disclosure of bar examination scores, which will make applicants focus only on preparing for bar examination, can be considered as a reversion to the former judicial examination system. By non-disclosing bar exam scores, however, law students can enjoy more diversified education rather than concentrating on bar examination only and multi-dimensionalevaluation system can be introduced for hiring lawyers. Other alternatives,such as non-disclosure of applicants’ rankings or non-disclosure of applicants scores based on their alma mater, cannot be proper solutions to prevent law school education from focusing only on bar exam preparation or to eradicate the hierarchical ranking structure and excessive competition found among law schools. Therefore, the Instant Provision does not fail to meet the requirement of least restrictive means.

The complainants’ private interests to be infringed on by the Instant Provision is that they are unable to know their own scores in bar examination and such interests can be dwarfed by the public interests to be protected by the Instant Provision. Therefore, the Instant Provision strikes the balance between legal interests.

2. Whether the Instant Provision violates the principle of confidence in law

The Instant Provision had been enacted before the first National Bar Examination was taken and as a result, bar exam scores have never been disclosed. Therefore, even though the complainants believed that their bar exam scores would be disclosed, their confidence or expectation in the matter seems not worthy of great protection. Also, compared to the public interests to be achieved by the Instant Provision to prevent law school education from focusing only on bar exam preparation and to eradicate the hierarchical ranking structure and excessive competition found among law schools, the complainants’ expectation cannot be considered greater than the public interests.

Supplement Opinion to the Court Opinion by One Justice

Within the Judicial Examination-Judicial Research and Training Institute system, all applicants’ judicial examination scores and rankings were disclosed. So, applicants could be hired based on the examination scores they had gotten, regardless of the rankings of their alma mater. Judges and prosecutors were also appointed on the basis of the exam scores, thereby guaranteeing fairness and justice in test, evaluation and recruitment process. But within the current Law School-Bar Examination system, as the name value of law school itself becomes the foremost important standard of evaluation, the objectiveness of evaluation and the fairness of recruitment process have been questioned.

In spite of the importance of the bar examination as one of the most important and effective means to evaluate applicants’ ability and capacity as lawyers, the absence of objective and fair standard to appraise their competence as lawyers becomes the cause of criticism and suspicion that applicants’ school rankings or background are considered more importantly than their actual abilities. Also, it has been criticized that relatively high bar exam passage rate and the non disclosure policy make the law school system as an effective way to pass on one’s power and vested interests to their descendants. The difference between the Judicial Examination-Judicial Research and Training Institute system and the Law School-Bar Examination system basically rests on the differences in procedural and consequential fairness between the disclosure and non-disclosure of exam scores and the objectiveness of evaluation.

Also, compared to other qualification examinations conducted in our country and foreign practice and related law, the non-disclosure policy does not seem to be a proper measure.

The purpose to disclose bar exam scores is to provide a chance to consider the bar exam scores, which is an objective standard for evaluating applicants’ ability, as one of the factors to evaluate applicants, not to make the scores become the only standard for hiring lawyers.

Considering the facts that many of the bar exam passers want to

overcome their disadvantage in school rankings and to be objectively evaluated through their bar exam scores and the Law School-Bar Examination system contains problems as mentioned before, the Instant Provision which prevents the bar passers’ scores from being disclosed is in violation of the Constitution.