In a case where the Minister of Justice decided and announced 762.03 points of the total number of applicants who were exempted from passing the second bar examination after deliberation by the Bar Examination Management Committee and decided and announced 1,538 points of all applicants who were 2,046 points of the total number of applicants, and failed to pass the above passing criteria, the case holding that it is difficult to view that the above disposition was remarkably deviates from the scope of discretion on the decision to pass the bar examination or abused discretionary authority.

In a case where the Minister of Justice decided and announced 762.03 points or more in total among applicants who were exempted from passing the second bar examination after deliberation by the Bar Examination Management Committee and decided and announced 1,538 points or more among all applicants who were 2,046 points or more, and failed to pass the above passing criteria, the case holding that the Minister of Justice in charge of conducting the bar examination shall consider the purpose and purpose of the Bar Examination Act, based on the review by the Management Committee, determine successful applicants of the bar examination within reasonable discretion, and have considerable discretion on the criteria and method for determining successful applicants in the process, and even if the Minister of Justice did not have some relative evaluation factors in the decision of successful applicants, it cannot be deemed that the above disposition is against Article 10 (1) and (2) of the Bar Examination Act, on the grounds that it is difficult to view that the above disposition considerably deviates from the scope of discretion or abused discretion on the decision of successful applicants.

Articles 1, 10(1) and (2), 14(1) and 15 subparag. 3 of the Attorney Examination Act, Article 27 of the Administrative Litigation Act

Plaintiff 1 and five others (Attorneys Jeong Young-young et al., Counsel for the plaintiff-appellant)

The Minister of Justice

May 30, 2014

1. All of the plaintiffs' claims are dismissed.

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

On April 26, 2013, the defendant revoked the second bar examination failure disposition against the plaintiffs.

1. Details of the disposition;

A. The Plaintiffs applied for the second bar examination conducted from January 4, 2013 to the 8th day of the same month with professional law school graduates (hereinafter “instant examination”) and acquired the following points.

Plaintiff 42.5 Plaintiff 42.35, 4755.49, 2751.375.26, 5727.87.84, 3757.84, 3753.84, 3753.9.42, 675.45.40, 675.484.30, 37535.45.40, 675.4.30

B. On April 26, 2013, the Defendant: (a) held the Bar Examination Management Committee (hereinafter “Management Committee”) on April 7, 2013; (b) determined the passing standards of the instant examination as follows to be at least 762.03 points at the total point of 762.03 points from among the applicants who were exempted from the passing (less than 40% of the full score of each subject); and (c) decided and announced 1,538 of the total applicants as successful applicants; and (d) issued each disposition of failure for the Plaintiffs who fall short of the said passing standards (hereinafter “instant disposition”).

The test in this case, contained in the main text, applied at least 2,00 applicants (1,50 applicants) with the admission quota of at least 75% (2,046 applicants) set by the sixth Management Committee on March 23, 2012, and 1,538 applicants among 1,703 applicants (2,046 applicants) were determined as successful applicants after full deliberation by the members of the Management Committee comprised of ○○ academic circles and legal circles, etc., the number of successful applicants (1,451 applicants), the number of successful applicants (1,451 applicants), the degree of practical ability of applicants, the status of supply and demand of legal professionals, etc. were determined on a line that does not deviate considerably from 1,500 applicants, in particular, while examining the examination function of the bar examination, and reflecting the nature of the qualification examination and ability of applicants, 1,538 (2,046 applicants' average score of at least 1,538% (365%) of the number of successful applicants and 3615% of the previous year (25%).365%).

C. Meanwhile, on March 23, 2012, the Defendant, prior to the instant examination, determined and announced 1,451 successful applicants of the first time attorney examination as follows, and determined the method of determining successful applicants of the instant examination.

- 1,472 applicants (193 applicants) among 1,65 applicants - 1,451 applicants (1,451% of successful applicants) - 1,65 applicants - 1,65 (15: 15: 7% of competition rate) - 1,65 applicants (1.15: 7% of applicants - 20% of the total number of applicants determined to have qualifications and capabilities to provide high-quality legal services in response to the various expectations and requests of the people in accordance with the purpose of introducing the law school system - 5% of the total number of applicants determined to have qualifications and capabilities of applicants for the examination, - 1,472 applicants for the examination (193 applicants) - 5% of the number of applicants for the examination, which are determined to have qualifications and capabilities of applicants for the examination at the law school - 0% of the total number of applicants for the examination, which are determined to have qualifications and capabilities of applicants for the examination at the law school - - 5% of applicants for the examination.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2, Eul evidence 1 and 3 (including each number), the purport of the whole pleadings

2. The plaintiffs' assertion

① Since the law school system was introduced in order to overcome the problems of the selection method of legal professionals through the existing judicial examination and to provide the improved legal services to the people, it is necessary to operate the bar examination as an absolute evaluation system in order to realize this. ② Nevertheless, the defendant introduced the selection method in consideration of the supply and demand situation of the legal market, thereby violating the purport of Article 10(1) and (2) of the Bar Examination Act (hereinafter “Act”), and the Enforcement Decree thereof violates the purpose of Article 10(1) and (2) of the Enforcement Decree of the Bar Examination Act (hereinafter “Enforcement Decree”). ③ As a result, the plaintiffs who failed the bar examination by the instant disposition were excessively infringed on the freedom of occupation guaranteed by the Constitution; ④ even if compared to the applicants for the first bar examination, the passing score has been considerably increased, and ⑤ the plaintiffs entered the bar school in trust and trust in assessing their abilities and qualities. In full view of the fact that the defendant introduced the alternative evaluation method in the process of determining their successful applicants, the disposition in this case has to be revoked as it considerably deviates from the scope of discretion granted to the defendant.

3. Relevant statutes;

Attached Form is as shown in the attached Form.

4. Judgment on the main defense of this case

Although the Defendant’s disposition of this case is revoked on the grounds that it was found to be erroneous in the method of deciding successful applicants for the bar examination, the Defendant must re-establish the criteria for passing the examination of this case after deliberation by the management committee, and as a matter of course, it does not necessarily provide the status of successful applicants to the Plaintiffs, and thus, all of the lawsuit of this case is unlawful. However, the Plaintiffs are likely to become successful applicants through a new procedure that corrected the illegality if the disposition of this case is revoked on the grounds that it is unlawful by the Defendant. In particular, as alleged by the Plaintiffs, if the applicants who were dismissed from the bar examination are deemed to be an attorney-at-law in accordance with the absolute evaluation method, there is room for all the Plaintiffs to become successful applicants. Accordingly, the Plaintiffs’ legal interest in seeking the revocation of the disposition of this case is sufficient

5. Judgment on the merits

A. Defendant’s discretion on the decision of successful applicants in the bar examination

1) Article 1 of the Act declares that the purpose of the bar examination is to test the ability of an attorney to perform legal affairs, such as professional ethics and legal knowledge, necessary for the attorney-at-law. Furthermore, Article 10(1) of the Act provides that the decision of passing the bar examination shall be made by fully considering the purpose of introducing the law school, and Article 10(2) of the Act provides that the decision of passing the bar examination shall be made by converting the points of multiple-choice and essay-type written examination into a certain ratio, and if any one of the subjects fails to obtain a minimum passing score, he/she shall be treated as a failure (Article 8(3) and [Attachment 4] of the Enforcement Decree of the Act (Article 8(3) of the Act provides that the minimum passing score for each subject shall be 40% of the full score). In addition, Article 14(1) and Article 15 subparag. 3 of the Act provides that a person who passed the bar examination shall establish the bar examination committee

As above, the Bar Examination Act only stipulates abstract considerations and reasons for the decision of successful applicants in the purpose of the Examination or the decision of successful applicants, but does not specify the nature of the Bar Examination (whether a qualifying examination is a qualifying examination or a selection test), the method of the decision of successful applicants (whether it is a relative evaluation), the scale and method of calculating the successful applicants, etc.

2) Meanwhile, the purpose of introducing a professional law school, which provides for important considerations in passing the bar examination in Article 10(1) of the Act, is to reflect the law school of examination, normalize the course of study, efficiently distribute outstanding human resources, train legal professionals with international sense and professional knowledge, improve the quality of legal services to citizens and national competitiveness (see Constitutional Court en banc Order 2008Hun-Ma370, 208Hun-Ba147, Feb. 26, 2009). As to this matter, Article 2 of the Act on the Establishment and Operation of Professional Law Schools provides for the education ideology of professional law schools, based on rich culture, the deep understanding of human beings and society, and values oriented towards freedom, equality and justice, which provide sound professional ethics and have knowledge and ability to solve legal disputes professionally and efficiently.

However, the individual purport or educational ideology of the law school is difficult to completely eliminate abstract elements due to its nature. In particular, the attorney examination has the nature as the entrance of the law school and the entrance of the law market, and the purpose or purpose of the relevant system conflict or tensions with each other according to the method of determining successful applicants. In short, if the number of successful applicants in the bar examination is reduced, the quality level of the lawyer is guaranteed, while the number of successful applicants in the bar examination may interfere with the stable settlement of the law school. On the other hand, if the number of successful applicants in the bar examination is increased, the burden of the professional law school or the applicant in the bar examination may be reduced, whereas the qualitative decline in the legal service may lead

3) Furthermore, it is difficult to view that a law school was introduced for the first time in 2009 and its system has yet to be settled completely. The bar examination also was conducted in 2012, and there is no sufficient accumulation of data on the decision of successful applicants, and thus, it is inevitable to operate a searching system. Ultimately, the defendant in charge of conducting the bar examination should determine successful applicants of the bar examination within a reasonable discretion, taking into account the purpose and purpose of the bar examination law based on the deliberation by the management committee, and in the process, the defendant and the management committee have considerable discretion on the criteria and method for determining successful applicants.

B. Whether the discretionary authority is deviates or abused

1) An attorney-at-law is not only able to engage in broad legal affairs but also a comprehensive professional who provides qualifications to certified tax accountants or patent attorneys, and thus, an attorney-at-law examination should also be secured as well. In addition, since a citizen receives the assistance of a lawyer at the time his/her own rights and duties are determined, it is difficult for him/her to fully leave the verification of the qualification of an attorney-at-law to the choice of the market or competition principles (the result of an attorney-at-law examination of a successful applicant may serve as an important standard for determination at the choice of a legal consumer, but shall not be disclosed to anyone pursuant to Article 18(1) of the Act). Therefore, even if an attorney-at-law examination is conducted in a qualifying examination for smooth provision of legal services and stable settlement of a law school, a system should not be operated so that a professional

2) In addition, deeming the bar examination as purely qualifying examination to be a certain level and guaranteeing a certain percentage of passing by all applicants (e.g., a certain percentage of 80 to 90%) may be contradictory in itself. If the bar examination is carried out, a certain qualification must pass by all applicants, but no one may pass if it reaches a certain qualification. However, the result is difficult to accept as not only the Defendant who is required to operate the bar examination system in a normal manner but also the Plaintiffs who graduated from a law school. Ultimately, even if there is a problem involving the nature as a selection examination or the elements of a relative evaluation method, it is difficult to take account of the pertinent number of successful applicants.

3) The Plaintiffs asserted to the effect that an applicant who was exempted from the success in all written tests conducted at the bar examination may be deemed to have been verified as an attorney-at-law. However, 40 points out of the minimum passing score for each subject as prescribed by the Bar Examination Act are merely an excessive criteria for the grounds for exclusion from passing. In other words, even if an applicant who did not obtain 40 points in one subject has obtained any number of points in other subjects, he/she cannot pass as an attorney-at-law as long as he/she lacks understanding and knowledge of the subject. Therefore, even if an applicant is an applicant who was exempted from the passing point in all subjects, he/she shall not be deemed to have passed the bar examination as a matter of course at the bar examination to determine whether to pass the passing point in accordance with the overall score under the main sentence of Article 10(2) of the Act. Even if a specific applicant obtained 40 points out of all subjects and fails to pass the bar examination at the same time, it is not sufficient to obtain more than 6 points in all subjects as the total passing point in all subjects, and to obtain more than 4 points.

4) In light of this, at least 75% of the admission quota that the Defendant intended to observe was considerably favorable for the applicants in the instant examination. Based on the above criteria, the Defendant set the pass score of the instant examination as 1,660 out of 1,62.03, and the pass score based on 100 out of 100 was merely 45.90 points. Accordingly, it may be deemed that the successful applicants of the bar examination did not show half of the pass score in the bar examination to verify their basic qualities. In light of the principle of absolute evaluation of proof of subjective real ability, it may be deemed that the above pass score was too low as the pass score of the bar examination. However, the Defendant applied the pass score more than 75% (1,500 applicants) compared to the admission quota to the applicants, but rather mitigated the above criteria. From this perspective, it is reasonable to view that the Defendant’s application of the pass score to ensure the minimum number of successful applicants in the bar examination system, rather than to ensure the successful applicants of the bar examination.

5) As seen earlier, the Bar Examination Act does not limit the method of a test or the method of determining successful examinees to an absolute evaluation method. Therefore, even if the Defendant did not have some relative evaluation factors in the decision on successful examinees in the instant test, it does not immediately mean that the examination violates Article 10(1) and (2) of the Act. Unlike the Plaintiffs’ assertion that the principle of absolute evaluation is stipulated in view of the bar exam as a qualifying examination, the language and text of Article 10(2) of the Act itself, contrary to the allegations by the Plaintiffs, opens the possibility of introducing control over the total number of successful examinees or counter-evaluation factors by allowing the Defendant to determine the successful examinees based on the total gains, except for exclusion from the successful examinees who did not reach the minimum passing score by each subject.

6) In addition, the defendant set the criteria for the passing rate as the number of professional law schools rather than the applicants. This may result in a decline in the passing rate at the beginning when the bar examination is implemented (However, not only the passing rate but also the passing rate at 75% in the case of the examination applied by the plaintiffs. Although the plaintiffs asserted that the passing rate was not treated equally with the applicants in the first bar examination, it is difficult to view that they were given benefits compared to the following applicants, considering the continuing bar examination system, although they claim that the principle of equality was violated since they were not treated equally with the applicants in the first bar examination, they would have received benefits in comparison with the following applicants. However, if the passing rate is maintained based on the applicants, it is difficult to maintain the problem of equity. On the contrary, if the passing rate is maintained on the basis of the applicants, it is difficult to readily conclude that most of the students have passed the pass rate at the first school for five years, based on the purport of Article 7(1) of the Act, as a theoretical guarantee for the applicants in the five-year period of admission.

7) Meanwhile, unlike the expectation at the time of entering a professional law school, the plaintiffs asserts that the defendant introduced a counter-evaluation method to the bar examination and thereby infringed their trust. However, the principle of trust protection applies to the case where the citizen forms a legitimate trust in the official title of the administrative agency prior to the instant disposition. There is no evidence to acknowledge that the defendant conducted the bar examination and granted a trust to the exclusion of the counter-evaluation method or the selective competitive elements, and the plaintiffs also have formed such specific trust. Rather, as seen earlier, the defendant presented the first bar examination's response standard to pass more than 75% (1,50) compared to the fixed number of admission at the time of announcing the first bar examination at the time of the first bar examination's recommendation by the management committee, and provided predictability to the applicants for the examination by faithfully determining the successful applicants for the examination of this case. Accordingly, the disposition of this case cannot be deemed to have infringed the legitimate trust interest of the plaintiffs legally protected.

8) Therefore, in light of the content of the relevant statutes and the purport of the introduction of the law school system, it is difficult to view the instant disposition as significantly deviating from the Defendant’s scope of discretion on the decision of successful applicants in the bar examination or as abusing discretionary power, and there

6. Conclusion

Since the plaintiffs' claims are without merit, all of them are dismissed, and the costs of lawsuit are assessed against the plaintiffs who have lost. It is so decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Justices Kim Byung-soo (Presiding Justice) Kim Jae-young Kim Tae-tae