Requirements for Eligibility to Take Bar Examination and Substitution English Tests for Bar Examination English Test Case

[19-1 KCCR 514, 2003 Hun-Ma 947 et al., Apr. 26, 2007]

Held, the Bar Examination Act, providing that both acquiring certain points from TOEFL or other official English examinations and taking law courses over 35 credits are required for the Bar Examination candidates, is in conformity to the Constitution.

Background of the Case

There used to be various foreign language tests in the Bar Examinations, where candidates were free to choose one foreign language test out of many different ones. Also, eligibility to sit for the bar examination did not include a requirement of taking law courses. The Bar Examination Act enacted in the year 2001 provides that the candidates satisfying the both requirements of (1) obtaining certain score or above from TOEFL or other official English examinations (hereinafter referred to as 'System of Substitution English Tests for Bar Examination English Test') beforehand and (2) obtaining certain credits or above by taking law courses are eligible for the first-round Bar Examination (hereinafter referred to as 'System of completing law courses'). The complainant, claiming that those eligibility requirements are unconstitutional, filed the constitutional complaint.

Summary of the Opinion

1.The System of Substitution English Tests for Bar Examination English Test has justifiable purposes in which lawyers should be globalized and they need to improve their lawyering skills for international legal problems. Also making English as a required subject is an effective and appropriate choice for such purposes. Besides, since there are ten different opportunities given for each substitution English tests, it satisfies the Least Restrictive Means Rule. Although someone can argue that globalization can be achieved by including other foreign languages as exam subjects as well, considering the reality where English has become

the international language practically and the numbers of legal literature are on the rise, it cannot be said the Least Restrictive Means Rule would not be satisfied just because English was chosen as the only foreign language test subject. Also the passing score of each substitution English test is not excessively high since the passing score is based upon the standard used for Level 5 national public employees applying for the long term training abroad opportunity. In addition, since the public interest of globalization of lawyers is a lot greater than the drawback bar examination candidates should suffer, this satisfies the principle in which there must be a balance between two conflicting legal interests. Thus, it cannot be said the freedom of occupation of the complainants was violated. Meanwhile, although it can be acknowledged that the bar examination candidates who have studied other foreign languages would be at some disadvantage compared with the ones who have studied English, considering the System of Substitution English Tests for Bar Examination English Test has justifiable purpose and three year grace period for the System is provided by law, the right to equality of the complainants is not violated.

2.The purpose of introducing the System of completing law courses is to test expert knowledge and legal knowledge of the candidates in related with legal education and throughout this test to achieve the normalization of college education as well as the effective distribution of national human resources. Therefore, the legislative purpose is just and the means of requiring 35 law course credits to sit for the bar examination is appropriate. Meanwhile, there are other alternative ways to satisfy the requirement such as distance learning option. Furthermore, since the public interest to achieve throughout this system is a lot greater than the additional effort some bar examination candidates should make, the conflicting legal interests are in balance, thereby the freedom of occupation of the complainants was not violated. Moreover, although the complainants claims that the right to equality is being violated because the undergraduate students majoring in other subjects, middle school or high school graduates would not be able to take the bar examination under the current System, the System itself has reasonable grounds as it was said above and there are other alternative system to satisfy the eligibility requirements and the eligibility requirements are related with

the bar examination preparation. Therefore, it is given that some bar examination candidates need to make an extra effort to satisfy such requirements, the Statutory Provision at Issue does not infringe the right to equality of the complainants.