8.Implementation of Qualifying Examinations for Licensed Administrative Agents

[22-1(B) KCCR 97, 2007Hun-Ma910, April 29, 2010]

In this case, the Constitutional Court decided that a portion of Article 4 Section 3 of the Enforcement Decree of Licensed Administrative Agent Act which states, "Mayors or Province Governors shall check the status of supply and demand of licensed administrative agents and, in case the qualifying examination thereof is deemed necessary, set plans for holding the examination," violates the Constitution as it is not in accord with the principle of statutory reservation and therefore violates the freedom of occupation of the complainant, who aspires to be a licensed administrative agent through a qualifying exam.

Background of the Case

The complainant, who had been preparing for the qualifying examination to be licensed administrative agents, inquired about the exam with the relevant ministry, which replied, "the license for administrative agents has been given to experienced public officials, and qualifying examinations have not been, and will not be conducted in the future." In response, the complainant filed a constitutional complaint challenging the constitutionality of the provision in this case, arguing that Article 4 Section 3 of the Enforcement Decree of the Licensed Administrative Act, which limits the condition for conducting the qualifying exam only to when there is a need in consideration of the supply level of licensed administrative agents, in fact blocks the route to becoming a licensed administrative agent by passing the qualifying exam and thus infringes on the complainant's occupational freedom.

Provisions at Issue

Enforcement Decree of the Licensed Administrative Agent Act (Feb.

29, 2008, Amended by Presidential Decree No. 20741)

Article 4 (Qualifying Examination for Licensed Administrative Agents)

(3) Mayors and/or Province Governors shall, in accordance with the number of persons exempted from all examinations pursuant to Article 6 Section 2 of the Act and those who have reported on their licensed administrative agent business pursuant to Article 8 of the Act, check the supply level of licensed administrative agents within the competent jurisdiction and review the necessity for the examination. In case the examination is deemed necessary, the Mayor and/or Province Governor shall set plans for holding the examination and report them to the Minister of Public Administration and Security.

Summary of the Decision

The Constitutional Court unanimously held that a portion of Article 4 Section 3 of the Enforcement Decree of the Licensed Administrative Agent Act which states that, "shall check the supply level of licensed administrative agents and, in case the qualifying examination thereof is deemed necessary, set plans for holding the examination (hereinafter the "instant provision")," violates the principle of statutory reservation and thus infringes on the freedom of occupation according to the following reasons:

The purpose of Article 4 of the Licensed Administrative Agent Act, which states that a licensed administrative agent shall be a person who passes the qualifying examination, is to realize the freedom of occupation in Article 15 of the Constitution through the means of 1) preventing monopoly of a profession or a line of profession by an individual or a group, 2) providing citizens with better means to define themselves through free competition in the job market by providing the public with a fair opportunity to become a licensed administrative agent and allow those who pass the accredited exam to execute administrative business unless unqualified.

In this sense, granting license for a licensed administrative agent to those who pass the qualifying examination pursuant to Article 4 of the

Licensed Administrative Agent Act requires that the test be carried out in a reasonable manner. In this context, "the subjects and methods of a qualifying examination for licensed administrative agents and other matters necessary therefor" to be prescribed by the Presidential Decree according to Article 5 Section 2 of the Act simply refers to specific methods and procedures related to tests, including their subjects, acceptance criteria, method, period and frequency, but it does not imply that whether to hold the examination itself should also be designated by the Presidential Decree.

The instant provision, nevertheless, stipulates that whether to hold the licensed administrative agent examination is subject to the discretion of Mayor and/or Province Governor and that they can set plans to hold the examination in case there is the need following a necessity review based on the supply status of licensed administrative agents in the competent region, such as the number of fully exempted persons and those who reported on their administrative business. And this means the test should not necessarily be held when deemed unnecessary by the Mayor and/or Governor. Consequently, the inferior law deprives the entire public as well as the complainant of the opportunity to obtain the qualification for a licensed administrative agent originally granted by Article 4 of the Act, a superior law, and gives exclusive right to administrative agent business to public officials with a certain level of experience or those experienced and majoring in foreign language.

In other words, the instant provision sets forth the conditions for restriction on fundamental rights, which results in an inferior regulation designating matters not mandated by its parent law. Therefore, the instant provision restricts the fundamental rights without legal grounds and violates the principle of statutory reservation, and, for this reason, it infringes on the complainant's freedom of occupation.