4. Authorization Requirement for Establishment of Law Schools and Limitation of Total Number of Admitted Students Case

[21-1(A) KCCR 292, 2008Hun-Ma370·147 (consolidated), February 26, 2009]

In this case, the Constitutional Court decided that, the provisions of the Act on the Establishment and Operation of Law Schools (hereinafter, the "Law School Act") which requires the government to authorize the establishment of a law school and to decide the total number of admitted students do not violate the Constitution.

Background of the Case

In case the establisher or the administrator of the public or private university desires to establish a law school, the Law School Act requires the authorization of the Minister of Education, Science and Technology (hereinafter, the "Minister of Education"), regulates specific authorization standards and total number of admitted students (hereinafter, the "Instant Provisions"). The complainants are educational foundations that establish and operate private universities and on November 30, 2007, the complainants applied for authorization of establishing law schools but they were not included in the preliminary authorized schools announced by the Minister of Education on February 4th, 2009. Therefore, the complainants filed this constitutional complaint arguing that the Minister of Education's denial of the authorization of law school (hereinafter, "denial of preliminary authorization") and the Instant Provisions infringe on their fundamental rights. The text of the Instant Provisions are as follow:

Provisions at Issue

Act on the Establishment and Operation of Law Schools(revised by Act No. 8852 on February 29, 2008)

Article 6 (standard of authorization)

② Detailed standard for authorization in Section 1 is defined by the

Minister of Education, Science and Technology.

Summary of the Opinions

The Constitutional Court, with a unanimous vote, dismissed the constitutional complaint requesting the cancellation of the dismissal decision of preliminary authorization and held that the Instant Provisions do not violate the Constitution for the following reasons.

1. Justiciability of the constitutional complaint on the denial of preliminary authorization

Since the complainants have the right to apply for preliminary authorization of this case and the universities, which have been dismissed of preliminary authorization, cannot participate in the following proceedings, and therefore, cannot be authorized to establish law school, the decision of denial of preliminary authorization can directly influence complainants' rights or legal interest.

However, according to Article 68 (1) of the Constitutional Court Act, in order for a person, whose fundamental right has been violated by the exercise or non exercise of a public power, to file a constitutional complaint, the person is required to exhaust all relief proceedings of other laws. Although the denial of the preliminary authorization falls under administrative action that can be appealed to the ordinary courts, the complainants' constitutional complaint, seeking for the unconstitutionality of the denial of the preliminary authorization, did not follow all the rights relief proceedings of the administrative action, which is against the exhaustion rule. Therefore, the constitutional complaint on the denial of preliminary authorization is not justiciable.

2. Constitutionality of the Provisions

A.Whether the Provisions violate the university's right to freedom and citizen's right to choose occupation

The purpose of the Provisions is to control the size of legal human

resources by considering supply and demand for lawyers and efficiently utilize national human resource through it. The policy of authorization and the total number of admitted students is proper means for this objective. Moreover, in the case of universities that have not achieved law school establishment authorization, the chance to establish law school has not been permanently deprived of and they continue to have the chance to educate law through an undergraduate curriculum. Therefore, the Instant Provisions do not seem to violate the principle of least restrictive means.

Also, the disadvantage that occurs to each university and citizen from the Instant Provisions cannot be said to be larger than the public interest derived from efficient human resource allocation, high quality legal education assurance, decrease of social costs from providing high quality legal service and restoration of citizen's trust in the legal field. The Instant Provision satisfies the requisite of balancing equities.

Therefore, the Instant Provisions do not violate the university's right to freedom and the citizen's right to choose occupation.

B. Whether the Instant Provision which requires the Minister of Education to decide the total number of admitted students of law schools violates the prohibition of blanket delegation

The Instant Provision declares the principle that the total number of law school students shall be decided by the government and further authorizes the Minister of Education to decide the specific number of admitted students for each law school. However, the total number of admitted students is not a matter that must be decided by law since it does not restrict fundamental rights and therefore the specific number of students does not have to be regulated by law to be enacted by the legislator.

Also, the total number of admitted students of law schools is a matter that needs to be revised according to the changes of social circumstances, thus delegating the Minister of Education to decide on this is efficient for quick and appropriate operation of law school system. The Instant Provision on the number of students specifically states that when deciding the total number of admitted students, 'various matters such as the sufficient legal service supply to citizens

and the balance of demand and supply of lawyers should be considered'. Therefore, the content of regulation by the Presidential decree from the Instant Provision can be predicted. Therefore the Instant Provision on the number of students does not violate the constitutional principle of prohibition of blanket delegation.