Constitutional Court to Decide Today on Constitutionality of Article 2 of the Lawyer Examination Act's Supplementary Provisions Regarding 'Bar Exam Abolition'

Constitutional Court Grand Bench.
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[Asia Economy Reporter Choi Seok-jin] The Constitutional Court is once again reaching a conclusion on the constitutionality of the Attorney Examination Act, which restricts eligibility for the attorney exam to law school graduates and mandates the phased abolition of the Judicial Examination.

Attention is focused on what conclusion the Constitutional Court, with a changed composition of justices, will reach given that the Judicial Examination has already been abolished since 2017 under the supplementary provisions of the Attorney Examination Act.

The Constitutional Court will hold a ruling session at 2 p.m. on the 29th regarding the constitutional complaint case on Article 5, Paragraph 1 of the Attorney Examination Act and Supplementary Provisions Articles 2 and 4, and will disclose the results of the review on the unconstitutionality of these provisions.

The subject provision, Article 5, Paragraph 1 of the Attorney Examination Act, limits eligibility for the attorney exam to those who have obtained a master's degree from a law school, Supplementary Provision Article 2 abolishes the Judicial Examination Act, and Supplementary Provision Article 4 stipulates that the existing Judicial Examination will be conducted concurrently with the attorney exam only until 2017.

The petitioners argued that due to their high school education level or economic circumstances, it is impossible or difficult to enter law school, and that the challenged provisions restrict eligibility for the attorney exam required to become a legal professional, and by abolishing the Judicial Examination which had no eligibility restrictions, their freedom to choose a profession, the right to hold public office, and equality rights have been infringed, filing a constitutional complaint in October 2017.

The Constitutional Court has previously ruled several times that the challenged provisions are constitutional.

In particular, regarding Article 5, Paragraph 1, the majority of justices opined that it was an unavoidable choice for the stable establishment of law schools to normalize legal education, and that conducting the Judicial Examination concurrently for eight years met the requirement of minimal infringement on fundamental rights.

On the other hand, regarding Supplementary Provisions Articles 2 and 4, in December 2017, the Constitutional Court dismissed the case with a 5 (constitutional) to 4 (unconstitutional) vote.

At that time, the five justices stated, “The Judicial Examination system is a professional qualification system for which legislative discretion is broadly recognized, so the requirements of Article 37, Paragraph 2 of the Constitution are somewhat relaxed,” and that under this relaxed standard, it is necessary to examine whether the principle of prohibition of excessiveness is violated.

They further reasoned that ▲ the abolition of the Judicial Examination is aimed at normalizing legal education through a shift in the method of training legal professionals, fostering legal professionals with expertise, and efficient allocation of national human resources, thus recognizing the legitimacy of the purpose and appropriateness of the means; ▲ the Judicial Examination is not sufficiently linked institutionally with legal education at universities, and maintaining it could hinder achieving the legislative purpose; ▲ the Act on the Establishment and Operation of Law Schools provides various support measures including scholarship systems; ▲ an eight-year grace period was given to protect the trust of those preparing for the Judicial Examination, so it does not violate the principle of minimal infringement; and ▲ the public interest pursued by abolishing the Judicial Examination outweighs the disadvantages suffered by the petitioners, thus balancing the legal interests. They referred to the precedent of the Constitutional Court’s constitutional ruling on these supplementary provisions and stated that there is no recognized change in circumstances or necessity to make a different judgment.

In contrast, Justice Jo Yong-ho stated at the time, “The abolition provision of the Judicial Examination restricts freedom of occupational choice based on ‘economic ability,’ which constitutes a significant restriction on freedom of occupational choice, so strict scrutiny must be applied to the abolition provision under the principle of prohibition of excessiveness in Article 37, Paragraph 2 of the Constitution.”

He added that ▲ there is no basis to consider legal professionals trained through the law school system more competitive or superior to those selected through the Judicial Examination system, so the legitimacy of the legislative purpose and appropriateness of the means of the abolition provision are not recognized; ▲ the special admission system and scholarship system of law schools fundamentally have limitations in resolving the high tuition fees, violating the principle of minimal infringement; ▲ abolishing the Judicial Examination system would deepen distrust and conflict between social classes, seriously infringing public interest and thus losing the balance of legal interests. For these reasons, he recognized the infringement of freedom of occupational choice, the right to hold public office, and equality rights, and expressed an opinion of unconstitutionality.

Meanwhile, Justices Lee Jin-sung, Kim Chang-jong, and Ahn Chang-ho denied that the abolition provision of the Judicial Examination infringes the right to hold public office, reasoning that the relationship between the Judicial Examination system and the appointment of judges and prosecutors is only indirect.

However, these justices recognized the legitimacy of the legislative purpose and appropriateness of the means of the abolition provision but found that it violates the principle of minimal infringement and the balance of legal interests, thus infringing freedom of occupational choice. They acknowledged equality rights infringement, stating, “The abolition of the Judicial Examination system does not advance the starting line for economically disadvantaged individuals but rather blocks even the opportunities they had to enter the legal profession, thereby destroying formal equality.”

This content was produced with the assistance of AI translation services.