2014Guhap61033 Action Demanding the cancellation of a disposition rejecting the Bar Examination

1. Yellow dust ○○;

Seoul Westernmun-gu 3 Street

2. Kim○-○

The Gangdong-gu Seoul Metropolitan Government Yang Jae-in

3. Stambed ○.

Seoul Jongno-ro 8 Paths

4. Anchorum;

Seocho-gu Seoul Metropolitan Government Dokwon

5. ○○.

Busan East-ro No. 500,000

6. Newly operated ○;

Seoul Songpa-gu Jambro

7. Prostitution○○;

Seoul Dongdaemun-gu Mawro 20 Paths

8. The person is.

The ridge of Jeonnam-gun, Gyeongnam-gun, and the provisional sunlight living path;

19. ○○○

Mapo-gu Seoul Metropolitan Masan-ro 4

10. Lighting○○

The Eunpyeong-gu Seoul Metropolitan Government Joint Ro 19 Street

11. Main ○○

The Dongdaemun-gu Seoul Metropolitan Government Lee Jae-ro

12. Consignment ○○

Changwon-si Masan-si Woo-dong, Changwon-si

13. Han-gu ○

Jung-gu Seoul Central District Dasan 36 Street

14. Doo○

Busan Scong-gu, Schannam-ro

[Judgment of the court below]

Attorney Choi Jong-soo, and Kim Sejong-han

The Minister of Justice

Litigation performers, public-service advocates decorations, Lee Jae-in

September 4, 2015

October 16, 2015

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

On April 8, 2014, the defendant revoked the third bar examination failure disposition against the plaintiffs.

1. Details of the disposition;

A. The Plaintiffs applied for the third bar examination (hereinafter “instant examination”) conducted from January 3, 2014 to the 7th day of the same month with professional law school graduates, and acquired points as follows.

B. On April 8, 2014, the Defendant decided the passing standards of the instant examination to be at least 793 points out of applicants who were exempted from the examination (less than 40% of the full scores of each subject) as follows, and accordingly decided and announced 1,550 of the total applicants 2,292 as successful applicants, and rejected the instant examination (hereinafter referred to as the “instant disposition”); 2,007, 75% of the total number of applicants, 2,007, 1,55% of the number of applicants for the examination to be at least 2,50, 1,50, 205 of the applicants for the examination to be at least 2,50, 205 of the number of applicants for the examination; 3,50 of the number of applicants for the examination to be applicants for the examination; 2,50 of the number of applicants for the examination to be applicants for the examination, 3,50 of the number of applicants for the examination to be applicants for the examination (hereinafter referred to as “the number of applicants”).

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion 1) In light of the fact that Article 10 of the Attorney Examination Act (hereinafter referred to as "the law when citing individual provisions") provides only the standard points that are required to pass the bar examination without any provision related to the number of persons to be selected unlike the judicial examination, the legislative intent of the legislator is to operate the bar examination as an absolute evaluation. In addition, the law school system was introduced to overcome the problems of the selection method of the legal professionals through the existing judicial examination and to provide the improved legal services to the people, so in order to realize this, the method of operating the bar examination as an absolute evaluation. Nevertheless, since the defendant decided to pass the bar examination in a fixed number selection method taking into account the supply and demand situation of the legal market, the disposition of this case is unlawful in violation of Article 10 of the Act. 2) If the examination of the law violation of the principle of statutory reservation is operated in an absolute manner, "the number of persons to be selected" or "the other party to pass the examination," the method of determining the number of persons to be selected.

The management committee which has only the authority to deliberate on matters concerning the decision of the successful applicant shall select the successful applicant by determining the method of deciding the successful applicant without the legal authority, and at the discretion of the defendant

Since Article 10 of the Act does not stipulate the essential matters of the method of passing the bar examination and thus violates the principle of statutory reservation, the instant disposition based on the above provision is unlawful.

3) The defendant in charge of the bar examination is in violation of the principle of reliance protection. The defendant disclosed that 720 points in total are the criteria for determining whether 720 points in total are qualified and competent as an attorney-at-law by disclosing that 720 points in total are determined to have qualifications and capabilities as an attorney-at-law through the report materials at the time when the first bar examination was issued to pass the bar examination. Thus, it can be deemed that 720 points in total are the criteria for determining whether they are qualified as an attorney-at-law. However, the plaintiffs trusted 720 points in total as the criteria for passing the bar examination of this case and applied for the examination of this case.

Nevertheless, since the defendant failed to pass the third bar examination to the plaintiffs who obtained at least 720 points in total, the disposition of this case in violation of the principle of trust protection is illegal.

B) The Defendant expressed his view that the passing rate of the first-time applicant through news report data, etc. should be at least 75% compared to the fixed number of admission at the law school, and the Plaintiffs trusted the above statement of opinion and applied for the instant examination. In order to comply with the above passing rate, the Defendant passed the examination at the first-time applicant at least 75% of the first-time applicant and at least the score corresponding to this standard. However, the Defendant did not comply with the above passing rate while determining the successful applicant.

Since the disposition of this case was conducted against the plaintiffs' legitimate trust, it is unlawful in violation of the principle of trust protection.

4) An applicant who has completed the graduate school of law violation of the equality principle should be able to pass the examination under the same conditions regardless of whether the number of candidates who have failed to pass the examination is several persons. However, in comparison with the applicants of the first and the second bar examination, the Plaintiffs suffered disadvantages, such as the higher passing score and the lower passing rate, and thus, the instant disposition is unlawful in violation of the equality principle. 5) The instant disposition is unlawful as it is against the principle of equality.

The adjustment of points in a written essay-type written examination on the subject of law (hereinafter referred to as "professional subject") as stipulated in Article 6 (1) of the Enforcement Rule is likely to not reduce the difference between professional subjects. Therefore, the instant disposition made without reasonable adjustment is unlawful.

B. Relevant statutes

As shown in the attached Form.

C. Determination

1) Whether Article 10 of the Act is violated

In full view of the following circumstances, Article 10 of the Act provides that a qualifying examination on the premise of an absolute evaluation method shall not be deemed to be a qualifying examination. Accordingly, this part of the plaintiffs' assertion is without merit. Article 10 (1) of the Act provides that the passing of a bar examination shall be determined by fully considering the purpose of introducing a professional law school. Article 10 (2) of the Act provides that the passing of a bar examination shall be determined by aggregating multiple-choice and essay-type written examination scores by converting the passing of a certain ratio, and if any one of the subjects fails to obtain a minimum passing score, it shall be disposed of as a failure. As such, Article 10 of the Patent Attorney Examination Act provides for the purpose of a bar examination or the reasons for excluding passing a bar examination, and it does not provide for the method of passing a bar examination, unlike Article 4 (2) of the Enforcement Decree of the Patent Attorney Act, Article 3 (2) of the Enforcement Decree of the Certified Public Accountant Act, and Article 8 (2) of the Enforcement Decree

As such, insofar as the Act does not limit the method of the bar examination or the method of deciding successful examinees to an absolute evaluation method, even if the Defendant did not have some relative evaluation factors in the decision of successful examinees in the instant examination, it cannot be deemed as a violation of Article 10 of the Act.

Rather, the language of Article 10 (2) of the Act itself opens the possibility of introducing control over the whole number of successful examinees or counter-evaluation factors by allowing the defendant to determine the successful examinees based on the total score, except for the successful examinees who fail to reach the minimum passing score by each item.

B) The Plaintiffs asserted that a qualifying examination is a qualifying examination for a lawyer, and that it is an examination for a patent attorney, certified public accountant examination, and certified tax accountant examination, and that it is an examination for a selection regardless of the prescribed number of employees if it exceeds the standards. However, the examination is a system for the selection of an occupation or a specialized field requiring a certain capacity examination. However, the issue of whether the method of determining a successful applicant would be based on an absolute evaluation is merely an issue of which one of the technical methods measuring an individual’s subjective qualities and ability. Thus, the method of a qualifying examination and an absolute evaluation is not logically bound.

C) If the bar examination is deemed to be an absolute evaluation as claimed by the Plaintiffs, a certain person who has reached a certain qualification can no longer pass if he or she has reached a certain qualification. However, such result is difficult to accept not only the Defendant who should be in charge of normal operation of the bar examination system but also the Plaintiffs who graduated from the law school. Furthermore, it is difficult to view that the bar examination was introduced for the first time in 2009, and it is difficult to view that the bar examination was completely settled. Since the bar examination was conducted for the first time in 2012 and the data on the decision of the successful applicant have not been sufficiently accumulated, it is inevitable to operate a search system.

Ultimately, the operation of the bar examination and the decision of successful applicants should not be fixed by the absolute evaluation method, but it is necessary to intervene in the nature as a selection examination or the relative evaluation method.

D) Article 10(1) of the Act provides for the purpose of introducing a professional law school as an important consideration in passing the bar examination. The purpose of introducing a professional law school is to reflect on the examination law school, normalization of college education, efficient allocation of outstanding human resources, train of legal professionals with international sense and professional knowledge, improve the quality of legal services to citizens, and enhance national competitiveness (see Constitutional Court Order 2008Hun-Ma370, 2008Hun-Ba147, Feb. 26, 2009). In this regard, Article 2 of the Act on the Establishment and Operation of professional law schools provides for the education ideology of professional law schools to train legal professionals with extensive culture, deep understanding of human and society, and values aiming at free, equality, and justice, based on sound professional ethics, which are complicated, and with knowledge and ability to solve professional disputes efficiently.

Article 10(2) of the Act provides that if the number of successful applicants for a bar examination reduces the number of successful applicants for a bar examination, the quality level of lawyers is guaranteed, while the number of successful applicants for a bar examination can be hindered in stable settlement at law schools. On the contrary, if the number of successful applicants for a bar examination is increased, the number of successful applicants for a bar examination is reduced, while the quality of legal services should be reduced. Ultimately, in order to determine successful applicants for a bar examination, the appropriate number of successful applicants should be determined by considering all the two aspects as above. 2) Article 10(2) of the Act provides that where the number of successful applicants for a multiple-choice written examination and essay written examination is calculated by converting the points of a certain percentage of successful applicants, the successful applicants shall be treated as successful applicants if any one of the subjects fails to obtain the minimum number of successful applicants. Article 10(4) of the Act provides that the number of successful applicants for a bar examination shall be determined by the Ministry of Justice to determine the minimum number of successful applicants for a written examination and essay-type written examination.

According to the above provision, in the bar examination, the basis of the decision on passing the examination shall be presented as the total score of the applicant, set up a certain passing score after deliberation by the management committee based on this data, and the applicant who has failed to obtain the minimum passing score for each subject shall be excluded from passing the examination, and the pass shall be determined for the applicant who has acquired the above passing score.

B) Comprehensively taking account of the contents of the aforementioned provisions and the following circumstances, Article 10 of the Act regulates the essential parts of the method of deciding passing, such as evidence of passing decision, requirements for passing decision, and procedures for determining successful applicants, even though the number of members is not specified in Article 10 of the Act, so Article 10 of the Act cannot be deemed to violate the principle of statutory reservation. (1) An attorney-at-law is not only able to conduct wide range of legal affairs but also a comprehensive professional who provides qualifications for certified tax accountants or patent attorneys, and thus, an attorney-at-law examination should secure the level of variable capacity corresponding thereto. However, when emphasizing only strict quality verification through a bar examination, it is likely that smooth supply of legal services and stable settlement at a law school may be impeded. Ultimately, an attorney-at-law examination has the nature as the entrance of law market and its nature as the entrance of law school and thus inevitably conflicts with the purpose of the relevant system. In light of the above purport and nature of the bar examination.

(2) Inasmuch as the Act does not provide for a qualifying examination on the premise of an absolute evaluation method, the standard points for passing the bar examination cannot be deemed to be an essential matter regarding the method for passing the bar examination. Moreover, it is difficult to view that the number of persons to be selected, on the ground that there are relative evaluation factors, is an essential matter regarding the rights of applicants for the bar examination. (3) According to Articles 10 and 15 of the Act, the management committee examines matters concerning the determination of successful applicants, such as the standard points for passing the bar examination, based on the method for passing the bar examination prescribed in Article 10 of the Act, and determines successful applicants in consideration of the result of deliberation by the management committee, and thus, it cannot be deemed that the management committee has determined successful applicants by determining the method for passing the bar examination without legal authority. (3) Whether the standard points for passing the bar examination were granted a trust of 720 points in total.

As seen earlier, since the bar examination does not take an absolute evaluation method, the passing standard score may be changed for each examination. Therefore, the passing standard score for the bar examination cannot be deemed to be above the specific passing standard score determined by the Defendant itself, based on the fact that the total passing score is above the passing standard score determined by the Defendant. In this regard, the purport of the Defendant’s decision that “1,451 persons who obtained more than the passing standard score, who obtained more than the passing standard score, as a successful applicant, were determined to have qualifications and capabilities as a successful applicant, is not to have been set as the passing standard score for the bar examination after the fact that the total passing score is above the passing standard score determined by the Defendant.

In light of the above circumstances, since the defendant cannot be deemed to have expressed the public opinion that 720 points in total were the criteria for passing the bar examination, and there is no other evidence to acknowledge this differently, this part of the plaintiffs' assertion is without merit without further review.

B) According to the statement in Gap evidence 2-2, whether the defendant granted trust, such as passing at least 75% of the applicants at the beginning (1) or not, the defendant maintained the first and second bar exam passing standards on April 26, 2013, and, in principle, passed at least 75% (1,50 persons) compared to the fixed number of admission.

(2) However, according to the language and text of the above news report, the defendant's above opinion is interpreted to mean that the number of successful applicants in the examination of this case is more than 1500, and "75%" in comparison with the fixed number of admission is merely the calculation basis of the above 1,50, and it cannot be interpreted to the same purport as the plaintiffs' assertion. In light of the fact that the defendant expressed a public opinion to determine the successful applicants as successful applicants at the beginning of the examination of this case at least 75% of the applicants in the examination of this case at the beginning of the examination of this case and at the time of re-acquisition the points corresponding thereto, there is no other evidence to acknowledge this otherwise. Accordingly, without any need to further examine this part of the plaintiffs' assertion, it is without merit

① As seen earlier, the bar examination does not take an absolute evaluation method; ② there is a difference between the passing rate or passing score since the examination of this case and the examination of this case are different in the degree of difficulty or the number of applicants; ③ consecutive years of the bar examination system, the instant disposition may not be deemed to violate the principle of equality; 5) pursuant to Article 9(1) and (2) of the Act; Article 7(1) and attached Table 1 of the Enforcement Decree of the Act, the subjects of the bar examination are public law (referring to the field of constitutional and administrative law), civil law (referring to the subjects in the field of the Civil Act, the Commercial Act and the Civil Procedure Act); (referring to the subjects in the field of criminal law and the Criminal Procedure Act); (3) the specialized subjects (referring to international law, the labor law, the labor law, the economic law, the selective type of the written examination; and (4) the general subject of the bar examination and the general subject of the bar examination in accordance with international trade law, the subject of the written examination and the general subject of the bar examination are considered to the written examination.

According to Articles 5(1) and 6(1) of the Enforcement Rule, the method of calculating the results of the written examination of the general subject and the written examination of the written examination of the specialized subject shall be the score of each applicant after the calculation of the standard difference and average points of the written examination score of each examination committee member with respect to the points marked by each examination committee member, adjusted according to the following formula, and the score converted according to the marks of the general subject or the specialized subject is the score of each examination committee.

According to the formula (1) 1 / 1 / Standard 10 B / Standard 50 x 10 x 50 x 10 x 10 x (referred to as "examination committee member's score - average - 1) of the standard x (referred to as "examination committee member's answer score - the number of answer points - 1) of the applicant's answer points). In addition, according to the former part of Article 9 (1) of the Judicial Examination Act, Article 4 (1) and attached Table 1 of the Enforcement Decree of the Judicial Examination Act, the method of selecting the applicant's answer points among the subjects of the first examination is the method of calculating the standard 5 x 1 of the Judicial Examination Act as the selected subjects under international law, labor law, international trade law, tax law, intellectual property law, economic law, criminal policy, and legal philosophy, and according to Article 8 (1) of the Judicial Examination Act, the method of selecting the applicant's answer points among the selected subjects is the method of calculating the standard 1 of the examination under Article 7 (1).

(1) The formula (the score of an applicant - the average point of the subject chosen by the applicant) / The standard x 10 of the subject chosen by the applicant / The aggregate of 2 of the standard 50 second [the (the score of the subject chosen by the applicant - the average point of the subject chosen by the applicant - the number of the applicants - the number of the subjects selected by the applicant - the number of the applicants - the number of the subjects selected by the applicant - the number of the applicants - the one for the general subjects)] is multiplied again] is intended to reduce the number of points by subject or by grading. In other words, where the subject is different for each applicant, there is an unreasonable result in acquiring relatively high points by the applicant who has selected the subject of the examination whose difficulty is low (the number of subjects selected by the applicant - the one for the examination - the one for the general examination - the one for the examination - the one for the general examination - the one for the examination - the one for the examination - the one for the general examination results may be resolved.

In the case of the written essay-type written examination on the specialized subject, it is possible to see the difference by the grading applicant, as well as the difference by the subject of the written examination by each applicant. However, the method of calculating the results of the written examination on the specialized subject is only to adjust the points to reduce the difference by the grading person, such as the written written examination on the general subject, and it is not to adjust the points to reduce the difference by the grading person, such as the written examination on the written examination on the general subject. Therefore, it cannot be viewed as a method that can solve all unreasonableness inherent in the written examination on the specialized subject.

D) However, given that, as seen earlier, the aforementioned method of sexual calculation is unlawful to the extent that it infringes on the fairness of the examination, considering the fact that it is being carried out the adjustment of points to reduce the number of scores for each grading person in calculating the grade of the written essay examination for the professional subject, and the Defendant is making efforts to minimize the number of stories for each subject through education for the members preparing questions and grading members. Accordingly, this part of the Plaintiffs’ assertion is without merit.

3. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed in entirety as it is without merit. It is so decided as per Disposition.

Judges and decoration of the presiding judge;

Judges Yoon Jin-jin

Judges Lee Dong-gu

A person shall be appointed.