Qualifications for Becoming a Judge under Court Organization Act

[24-2(B) KCCR 214, 2011Hun‐Ma786, 2011Hun‐Ma786, 2012Hun‐Ma188

(consolidated), November 29, 2012]

The Constitutional Court, in this case, held that, the part regarding Article 42 Section 2 of the proviso of Article 1 of Addenda of the Court Organization Act and Article 2 of such Addenda are against the Constitution so far as they are applied to those who had already enrolled in the Judicial Research and Training Institute when the Court Organization Act is revised and applies for the position of judge in the year of completion of the course of such Institute.

Background of the Case

(1)Complainants are the persons who, after having passed the bar exam, entered the Judicial Research and Training Institute and are expected to complete the course after January 1, 2013. According to the Court Organization Act as of the time when the complainants entered the Institute, they would be able to acquire the qualification to be appointed as a judge immediately upon completion of the course. However, the Court Organization Act was amended on July 18, 2011 and thus, from January 1, 2013, a person cannot acquire such qualification right after completing such course but he or she can be appointed as a judge after gaining some legal experience for certain period.

(2)In response, the complainants filed this constitutional complaint with the Constitutional Court alleging that the part regarding Article 42 Section 2 of the proviso of Article 1 of Addenda of the Court Organization Act and Article 2 of such Addenda are against the Constitution.

Provisions at Issue

The question presented to us is whether provisions at issue, either the part regarding Article 42 Section 2 of the proviso of Article 1 of Addenda of the Court Organization Act or Article 2 of such Addenda (hereinafter, the "Instant Provisions") is against the Constitution and the contents of those provisions at issue are as follows:

Addenda to the Court Organization Act (revised by Act No.10861 on July 18, 2011)

Article 1 (Enforcement Date)

This Act shall enter into force on January 1, 2012: Provided, however that the amended provision of Article 41‐2 of this Act shall enter into force on September 1, 2011 andthe amended provisionsofArticle 42Section 1 andSection 2and Article 44 Section 2 and Article 45 Section 4 of this Actshall enter into force on January 1, 2013.

Article 2 (Provisional measures regarding training in office for appointment of judges)

Despite the amended provision of Article 42 Section 2, the judges shall be appointed in compliance with the following: in the instances of appointing a judge in the period between January 1, 2013 and December 31, 2017, the judge who has served one of the positions under Items of Article 42 Section 1 with more than 3 years' experience shall be appointed; in the instances of appointing a judge in the period between January 1, 2018 and December 31, 2019, the judge who has served one of the positions under Items of Article 42 Section 1 with more than 5 years shall be appointed; and, in the instances of appointing a judge in the period between January 1, 2020 and December 31, 2021, the judge who has served one of the positions under Items of Article 42 Section 1 with more than 7 years shall be appointed.

Summary of the Decision

1. Court Opinion

A.Whether the principle of protection of confidence in law is violatedand thus the right to hold public offices is infringed or not

Regulations of the Court Organization Act with respect to the qualifications for becoming a judge had been maintained for the last forty years with no big change until the revision of the Act at issue in the instant case was made. And, in the meantime, the only way to acquiring that qualifications was to pass the bar exam and complete the course provided by the Judicial Research and Training Institute. In light of these, we found that the government provided a basis for the confidence that a person passing bar exam and then completing the course provided by the Judicial Research and Training Institute can acquire the qualifications for becoming a judge.

Complainants having such confidence, after spending substantial time and efforts on the bar exam for years, passed the bar exam and entered the Judicial Research and Training Institute, which enabled them to attain a position of judicial trainee, a sort of public official in special government service, which is described in Article 72 of the Court Organization Act. Thus, the complainants' interests in having confidence that they may obtain qualifications for becoming a judge by completing the course provided by the Judicial Research and Training Institute are worthy to be protected. It shall not be deemed that such complainants' interests in having that confidence formed from government' legislation providing the basis of such confidence disappear only because of the Judiciary's indication of its position for pushing ahead with revision of certain laws in the future.

In the instant case, the public interest to be pursued by the Instant

Provisions contrast with that complainants' interests is to strengthen the qualifications for becoming a judge so that a person having ample social experience and years of experience becomes a judge having right to make a decision on cases. While that public interest is significant and necessary from long–term perspective, it is hard to consider that the Instant Provisions have to be urgently applied even to the persons who have already entered the Judicial Research and Training Institute at the time of revision of the Court Organization Act. Meanwhile, from the perspective of achieving the public interest described above, it is difficult for us to find any reasonable grounds for treating the complainants, the judicial trainees spending their first year in that Institute at the time of revision of the Court Organization Act, differently from those spending their second year in that Institute.

Therefore, the Instant Provisions violate the principle of protection of confidence in law because they are inadequate to protect the complainants' confidence in law: they make Article 42 Section 2 of the Court Organization Act take effect on January 1, 2013 and thus force the application to the people who have already entered the Judicial Research and Training Institute at the time of revision of the Court Organization Act, although they stipulate only Article 2 of Addenda of the Court Organization Act as interim measures.

B.Whether the revised Act is not to be applicable to the complainants permanently or not

Notwithstanding, for the matter of the scope of protection of the complainants' confidence in previous laws, we found that the legislature has discretion in enacting laws for certain professional qualification such as the one for becoming a judge. In addition, considering fairness between the complainants and the persons who would be able to become a judge only after completing certain period of holding office required by the revised statute, it shall not be

deemed that the revised statute must not be perpetually applied to the complainants only based on the fact that they entered the Judicial Research and Training Institute prior to the revision of the Court Organization Act.

Thus, with respect to the protection of confidence in laws for the complainants having position of trainee of the Judicial Research and Training Institute as of the time of revision of the Court Organization Act, the complainants shall be given at least one opportunity to become a judge right after completing the course of the Institute as heretofore. Therefore, the Instant Provisions are against the principle of protection of confidence in law so long as they do not give that opportunity to the complainants.

In conclusion, so far as they are applied to those who had already been enrolled in the Judicial Research and Training Institute on July 18, 2011 when the Court Organization Act is revised, the Instant Provisions violate the principle of protection of confidence in laws and thus infringe on the complainants' right to hold public office.

2. Dissenting Opinion of Three Justices

Given our judge appointment system where the trainees of the Judicial Research and Training Institute have become a judge immediately after completing the course taught in that Institute was just a choice of the legislature taking account of lack of manpower resources in legal profession and recent 10 year changes where only a small percentage of people having completed that course of the Institute have become a judge, we found that the complainants' confidence in that system has not been provided by the legislation but has been created by themselves through making use of that opportunity reflexively granted.

In our view, the changes in qualifications for becoming a judge

requiring certain period of experience was fully anticipated: even considering the details of revision of the Court Organization Act at issue, the revision of the laws and regulations with respect to qualifications of becoming a judge has underwent the process of publicity for at least 10 years; the legislature has broad discretion in enacting statutes regarding such qualifications pursuant to Article 101 Section 3 of the Constitution. Furthermore, we cannot find that the complainants' confidence in laws is worthy to be protected.

Moreover, the disadvantages to be suffered by the complainants are not likely to be so great because there is no restriction on the complainants to have other occupations rather than becoming a judge and only three years of legal experience are required to become a judge, while the public interest in reinforcing the protection of people's basic right and enhancing people's trust in the judiciary by appointing and making judges having legal experience make decisions on cases is significant. Therefore, for the reasons stated above, it shall not be considered that the damage on the complainants' interest in the confidence in laws outweighs the public interest pursued by the Instant Provisions.