Test Time for Level Two of the Bar Examination Case

[20-1(B) KCCR 447, 2007Hun-Ma917, June 26, 2008]

In this case, the Constitutional Court decided that the bar examination notification which sets two hours of test session per subject in the second level of the bar exam does not infringe the complainant's basic rights.

Background of the Case

The complainant is a slow writer and has a bad handwriting who passed level one of the bar examination in 2001 and 2005 but failed in level two in the same years and the respective following years. In 2007, the complainant passed level one once again in the 49th state bar exam.

The respondent, herein the Minister of Justice, issued the Ministry's public notice numbered 2007-51 and titled "Schedule for the 49th Bar Examination Level Two" on June 5, 2007, and the clause of the notice indicating the time and subject for each test date assigns three-hour session for civil law and two-hour session for the rest of the subjects. The complainant filed this complaint to the Court, arguing that the above public notice which gives too short of a test time infringes upon the right to public office, freedom of occupational choice and the right to equality and pursuit of happiness.

Summary of Decision

The Constitutional Court, in an unanimous opinion, decided that the public notice concerning this case does not infringe the complainant's basic rights according to the following reasons:

It is an issue whether the public notification of this case infringes the complainant's freedom of occupational choice or right to hold public office. The public notice lays out a fixed test time per subject for the bar examination that somewhat serves as a qualification test in a professional area. However, deciding the test duration per subject is a matter of policy or technicality related to the bar examination system, where an extensive leeway is granted to the legislative or the

delegated executive.

The bar examination aims to single out those competent for the practice of law, and a critical qualification to be tested including how the person applies the legal knowledge to practical situations proficiently. Therefore, it is necessary to evaluate a person's ability to solve the given test questions within an fixed amount of time.

Meanwhile, the respondent gives an identical amount of test time to all applicants for level two of the bar examination as specified in the public notice concerned, but at the same time extends preferential treatment, through the public notice "Schedule for 2007 Bar Examination" dated January 2, 2007, to applicants with disability which obstructs objective evaluation under equal time and conditions to those of other applicants. As such, the public notice concerned mitigates the restriction of basic rights by permitting special measures for certain applicants in need while, in principle, uniformly applying a fixed test time to all applicants.

If that is the case, the respondent, the government office which administers the bar examination, cannot be considered as having overstepped its boundary of discretion and violated the claimant's freedom of occupational choice or the right to public office by determining the bar test time for each subject as in the public notice concerned. Taking all such circumstances into consideration, the public notice concerned does not seem so apparently unreasonable or unfair as to infringe the complainant's right to equality.