Constitutional Court: "Restrictions on Bar Exam Eligibility, Abolition of Judicial Exam, and Limitations on Judge and Prosecutor Appointment Qualifications Are Constitutional"

Chief Justice Yoo Nam-seok of the Constitutional Court, along with other constitutional justices, is seated in the Grand Bench of the Constitutional Court in Jongno-gu, Seoul, on the 29th to deliver rulings on cases including the constitutional complaint regarding the Bar Examination Act.

[Asia Economy Reporter Choi Seok-jin] The Constitutional Court upheld its previous stance and ruled constitutional Article 5, Paragraph 1, and Supplementary Provision Article 2 of the Attorney Examination Act, which abolished the Judicial Examination and restricted eligibility for the Attorney Examination to graduates of law schools.

The Constitutional Court also made its first constitutional ruling on the provisions of the Court Organization Act and the Prosecutors' Office Act that limit the qualifications for appointment as judges and prosecutors to those who have been lawyers or in similar positions for more than 10 years and those who hold lawyer qualifications, respectively.

On the 29th, the Constitutional Court unanimously dismissed (ruled constitutional) the constitutional complaint case against Article 5, Paragraph 1 of the Attorney Examination Act, which restricts eligibility for the Attorney Examination to those who have obtained a master's degree from a law school, and Supplementary Provision Article 2 of the same law, which abolishes the Judicial Examination.

Mr. A and others, who had been preparing for the Judicial Examination, filed a constitutional complaint with the Constitutional Court, arguing that the provisions infringe on the freedom of occupational choice, the right to hold public office, and the right to equality, as they restrict eligibility for the Attorney Examination to law school graduates while abolishing the Judicial Examination, making it impossible or difficult for those with only a high school diploma or economic difficulties to enter law school.

First, the Constitutional Court determined that the fundamental right restricted by the main text of Article 5, Paragraph 1, which limits eligibility for the Attorney Examination, is the freedom of occupational choice, and since the qualifications for appointment as judges and prosecutors are limited to those with lawyer qualifications by other laws, it is difficult to see these provisions as directly related to the restriction of the right to hold public office.

The Constitutional Court cited precedents from 2012 and 2018, which ruled constitutional on the same provisions, stating that "the purpose of the law school system, introduced to provide high-quality legal services, normalize legal education, and prevent severe waste and inefficiency of national human resources, is effectively achieved through linkage with the Attorney Examination system, thus recognizing the legitimacy of the purpose and the appropriateness of the means."

It further explained the reason for the constitutional ruling, stating, "There is no special change in circumstances or necessity to change the above Constitutional Court precedents, so the Court will maintain the same view in this case."

Regarding Supplementary Provision Article 2, which abolishes the Judicial Examination, the Constitutional Court also maintained its previous stance, citing constitutional rulings from 2016 and 2017, stating that there is no special change in circumstances or necessity to change the precedent.

Previously, the Constitutional Court ruled constitutional on Supplementary Provision Article 2 with a 5 (constitutional) to 4 (unconstitutional) vote. The majority of the justices who expressed their opinions at that time stated, "The Judicial Examination system is a professional qualification system where legislative discretion is broadly recognized, so the requirements of Article 37, Paragraph 2 of the Constitution are somewhat relaxed," and thus the principle of proportionality should be examined under this relaxed standard.

They reasoned that ▲ the provision abolishing the Judicial Examination aims to normalize legal education through a shift in the method of training legal professionals, foster legal professionals with expertise, and efficiently allocate national human resources, thus recognizing the legitimacy of the purpose and appropriateness of the means; ▲ the Judicial Examination is not sufficiently linked institutionally with university legal education, 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; and ▲ 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 the provision abolishing the Judicial Examination outweighs the disadvantages suffered by the petitioners, thus balancing the interests.

On the other hand, the Constitutional Court dismissed the constitutional complaint regarding Supplementary Provision Article 4, which stipulated that the existing Judicial Examination would be conducted in parallel with the Attorney Examination until 2017, on the grounds that the constitutional complaint was filed beyond the statutory period of "within 90 days from the date the petitioner became aware of the reason" and "within one year from the date the reason occurred."

The Court explained, "Supplementary Provision Article 4 came into effect on May 28, 2009, when the amended Attorney Examination Act was promulgated. The petitioners had all been taking the Judicial Examination before 2009, so the infringement of fundamental rights under this provision occurred immediately upon enforcement. Therefore, the petition filed on October 10, 2017, more than one year after the enforcement date of May 28, 2009, is inadmissible for failing to comply with the filing period."

Meanwhile, on the same day, the Constitutional Court also ruled constitutional the former Article 42, Paragraph 2 of the Court Organization Act, which appoints judges from among those who have been judges, prosecutors, or lawyers for more than 10 years or have lawyer qualifications and have worked in national institutions, local governments, public institutions, or held positions of assistant professor or higher at universities, and Article 29, Item 2 of the Prosecutors' Office Act, which appoints prosecutors from among those with lawyer qualifications.

The Court stated, "Requiring lawyer qualifications as a prerequisite for appointment as a judge or prosecutor does not constitute blocking opportunities for public office appointments due to factors unrelated to job performance ability. However, the issue is whether restricting appointment as judges or prosecutors only to those with lawyer qualifications, excluding other routes, infringes on the right to hold public office."

It explained the purpose of the appointment qualification restrictions in the Court Organization Act and the Prosecutors' Office Act, pointing out, "It is difficult to see that immediately appointing judges or prosecutors after passing a separate selection exam and completing a state-run training course aligns with the purpose of the new legal professional training system."

The Constitutional Court concluded, "Therefore, the appointment qualification provisions do not infringe on the right to hold public office by not introducing a separate system where candidates for judges or prosecutors are selected through an exam separate from the Attorney Examination and then appointed after completing a state-run training course."

Additionally, the Constitutional Court maintained its previous constitutional stance on Article 22 of the Act on the Establishment and Operation of Law Schools, which requires a bachelor's degree or equivalent academic ability as an admission qualification, and Article 23, Paragraph 2 of the same law, which sets 'foreign language proficiency' as a mandatory criterion for admission screening materials for law schools.

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