A. Background of the Case
In this case, the Constitutional Court held that the provision of the Addenda to the National Bar Examination Act, which repeals the Korean Bar Examination Act (hereinafter referred to as the "Repeal Provision") does not infringe upon the complainant’s freedom of occupational choice.
The National Bar Examination Act was enacted in 2009, stipulating that legal professionals would now be trained through education provided by professional law schools, instead of selected by the Korean Bar Examination. The National Bar Examination Act stipulates that the Korean Bar Examination shall be administered in parallel with the National Bar Examination until 2017, but that the Korean Bar Examination Act will be repealed on December 31, 2017.
Hence, the complainants, who were preparing for the Korean Bar Examination, filed a constitutional complaint on the ground that their fundamental rights had been infringed upon.
B. Summary of the Decision
The Constitutional Court ruled that the Repeal Provision does not infringe on the complainants’ freedom of occupational choice, for the following reasons.
With respect to the provisions of the National Bar Examination Act which prescribe that those who intend to take the National Bar Examination should obtain a master's degree from a professional law school, the Constitutional Court ruled on April 24, 2012, in 2009Hun-Ma608 et al. that the relevant restriction on taking the National Bar Examination is based on the rational judgment of the legislators to normalize legal education, and to establish the professional law school system, and that it is difficult to achieve the legislative purpose, such as normalization of legal education, through a system that administers the National Bar Examination in parallel with the Korean Bar Examination, and also that a system for the financially vulnerable is also provided for in the Act on the Establishment and Management of Professional Law Schools.
Since the enactment of the National Bar Examination Act, the reliance interest that the Korean Bar Examination will be maintained has been altered or has ceased to exist, and a grace period of eight years was set to protect the confidence of those who were preparing for the Korean Bar Examination. In fact, maintaining the Korean Bar Examination would undermine the confidence of those who have entered or are preparing for admission to professional law schools or the confidence of educational institutions authorized for and operating professional law schools, all on the premise that the Korean Bar Examination will be repealed.
Some law schools have been criticized for the unfairness of their admission processes or substandard curricula. However, collective efforts are required to help these law schools take root in accordance with the purpose of their foundation, and it cannot be concluded that law schools are currently being operated in a manner that infringes upon the complainants’ fundamental rights.
Justices Lee Jin-Sung, Kim Chang-Jong, and Ahn Chang-Ho set forth a dissenting opinion on the grounds that the disadvantage imposed by repealing the Korean Bar Examination upon those who have no financial ability to attend professional law schools is as grave as the public interests it seeks through the repeal of the Korean Bar Examination, and therefore, the repeal of the Korean Bar Examination infringes on the complainants’ freedom of occupational choice by eliminating the chances of the financially vulnerable to become legal professionals and consequently undermining their right to equality.
Justice Cho Yong-Ho set forth the dissenting opinion that the Repeal Provision not only infringes on the freedom of occupational choice and right to equality, but also infringes on the right to hold public office, because those who have no financial means to attend law schools would lose the opportunity to be appointed as a judge or a prosecutor.
C. Aftermath of the Case
It was decided that the Korean Bar Examination, which has contributed to the training of legal professionals for the past half-century, would no longer be implemented after 2017. However, controversy over the repeal of the bar examination continues, as seen in the fact that several bills for the partial amendment of the National Bar Examination Act had already been proposed in the 20th National Assembly before this decision was made, that there are four dissenting opinions in this decision, and that constitutional complaints were filed against the restrictions on taking the National Bar Examination and the repeal of the Korean Bar Examination after this decision.