Case on the Enforcement Rules of the Certified Judicial Scriveners Act

[2 KCCR 365, 89Hun-Ma178, October 15, 1990]

A. Background of the Case

In this case, the Court struck down Article 3 Section 1 of the Enforcement Rules of the Certified Judicial Scriveners Act, which gave the Minister of Court Administration discretion in conducting judicial scriveners' license exams.

Article 4 of the Certified Judicial Scriveners Act grants a judicial scrivener's license, firstly, to a person with seven or more years of experience in the ordinary courts, the Constitutional Court, or the Prosecutor's Offices as a clerk or a higher position; secondly, to a person with five or more years of experience in the ordinary courts, the Constitutional Court, or the Prosecutor's Offices as an administrator or a higher position, who had been certified by the Chief Justice of the Supreme Court as having the necessary legal knowledge and ability to carry out the tasks of a certified judicial scrivener; thirdly, to a person who passed the judicial scrivener's license examination (Section 1). Section 2 of the provision delegates matters concerning certification and exam administration to the Rules of the Supreme Court.

However, Article 3 Section 1 of the Enforcement Rules (Supreme Court Rule No. 1108, February 26, 1990), authorized by the above provisions, states, "the Minister of Court Administration may administer the examination upon approval from the Chief Justice of the Supreme Court when he or she recognizes the need for additional judicial scriveners." The Supreme Court conducted only three examinations since the founding of this country for the reason that public officials retired from the courts and prosecutor's offices satisfied the need for judicial scriveners.

The complainant worked as a clerk in a judicial scrivener's office and was preparing to take the examination. He filed a constitutional complaint, asserting that Article 3 Section 1 of the Enforcement Rules of the Certified Judicial Scriveners Act deprived him of the opportunity to take the certified judicial scrivener examination and thus violated his right to equality.

B. Summary of the Decision

The Court struck down Article 3 Section 1 of the Enforcement Rules of the Certified Judicial Scriveners Act for violating the right to equality and occupational

freedom, after recognizing the rules of the Supreme Court as a proper subject of constitutional adjudication.

Article 107 Section 2 of the Constitution grants the Supreme Court the final review power over the constitutionality of decrees and rules. However, this merely means that, when a trial depends on the constitutionality of decrees or rules, the Supreme Court can subject it to final review. The provision does not apply to a constitutional complaint filed on grounds that fundamental rights have been directly violated by decrees and rules. The “governmental power” subject to constitutional adjudication, as in Article 68 Section 1 of the Constitutional Court Act, refers to all powers including those that are legislative, judicial and administrative. Statutes enacted by the legislature, enforcement decrees and rules promulgated by the executive, and rules made by the judiciary may directly violate basic rights without awaiting any enforcement action, in which case they are immediately subject to constitutional adjudication.

Meanwhile, Article 4 Section 1 of the Certified Judicial Scriveners Act grants the license not only to retirees with seven or more years of experience at the ordinary courts, the Constitutional Court or public prosecutor's offices, but also to those who have passed the examination. The intent behind such provision is to open the opportunity fairly to all people, to exclude the monopoly of the occupation by certain individuals or groups and to realize the freedom to choose one's occupation under Article 15 of the Constitution as a means to nurture his or her individuality through free competition.

The license granted by the Article 4 Section 1 Item 2 of the Certified Judicial Scriveners Act to those who have passed the examination is premised on the fact that the examination must have been administered in a reasonable manner. Accordingly, “matters concerning exam administration,” delegated by Article 4 Section 2 of the same Act to the Rules of the Supreme Court, mean the concrete methods and procedures of the examination and not whether or not it is given at all.

Notwithstanding, Article 3 Section 1 of the Enforcement Rules authorizes the Minister to not give the exam if he does not see the need for more judicial scriveners. This deprives people of the opportunity to become certified judicial scriveners, which was granted to them by the superior law, Article 4 Section 1 of the Certified Judicial Scriveners Act. At the same time, it grants retirees of the courts and prosecutor's offices a monopoly on the work of judicial scriveners. The Supreme Court has departed from the delegated rule-making authority and

violated the occupational freedom and right to equality belonging to people who wish to become a certified judicial scrivener.

C. Aftermath of the Case

Whether Article 107 Section 2 of the Constitution can be interpreted to give the Constitutional Court the power to review the constitutionality of decrees and rules has been debated. This decision made it clear that, when rules and regulations directly violate people's fundamental rights, their constitutionality is reviewed by the Constitutional Court.

The Supreme Court officially objected to the decision after its announcement (The Law Times, November 26, 1990). The Supreme Court criticized the decision by stating that Article 101 of the Constitution identifies the Supreme Court as the highest court overseeing the judiciary, while Article 107 Section 2 gives the Supreme Court and other ordinary courts the exclusive power to review non-statutory inferior laws such as decrees and rules. The Supreme Court went on to argue that it is possible and also necessary to first challenge the decrees and rules that directly infringe upon fundamental rights by way of administrative litigation, in order to satisfy the rule of exhaustion of prior remedies. Also, the Supreme Court contended that if the Constitutional Court were to review decrees and rules, exercise of such power must be preceded by an organization and structure that can sustain such exercise.

Almost two years after this decision, on July 19, 1992, the Ministry of Court Administration conducted its first judicial scriveners' examination, and in 2017 the 23rd examination was held.

The Enforcement Rules of the Certified Judicial Scriveners Act (title changed to “Certified Judicial Scriveners Rules” in the amendment by Supreme Court Rule No. 2189 on July 7, 2008) were amended by Supreme Court Rule No. 1476 on August 4, 1997, prescribing that the examination would be held once every year, excluding cases where the Certified Judicial Scrivener Examination Committee (now the “Certified Judicial Scrivener Qualification Review Committee”) voted against conducting the examination under inevitable circumstances (Article 3 Section 1).