5-Year Limit on Bar Exam Attempts Applies Even to Pregnancy and Childbirth... Barely Ruled Constitutional
The Constitutional Court has narrowly ruled that the Bar Examination Act, which does not recognize pregnancy and childbirth as exceptions to the time limit for taking the bar exam—which must be passed within five years of graduating from law school—is constitutional.
According to legal circles on the 4th, the Constitutional Court ruled on the 21st of last month that Article 7, Paragraph 2 of the Bar Examination Act, which stipulates exceptions to the application period limit, is constitutional by a vote of 4 (constitutional) to 5 (non-conforming to the Constitution).
Although there were more opinions that the law was non-conforming to the Constitution than those that it was constitutional, the final conclusion was "constitutional" because it did not reach the required quorum of 6 judges for a ruling of non-conformity.
Among the petitioners, Ms. Kim Nu-ri took the bar exam in 2016 after graduating from law school, failed, and subsequently gave birth to two children.
After failing the exam again in 2020, she became a so-called "O-tal-ja" (a person who failed five times), meaning she can no longer take the exam.
Article 7, Paragraph 1 of the Bar Examination Act stipulates that a person can take the bar exam only five times within five years from the last day of the month in which they obtained their law school degree, or from the date they took the exam as a prospective graduate.
However, Article 7, Paragraph 2 excludes the period of military service from this "five-year" limit.
Kim and others filed a constitutional petition, arguing that the Bar Examination Act violates the right to equality and the freedom of occupational choice by recognizing only military service as an exception to the application period limit.
Justices Kim Hyung-doo, Jung Jung-mi, Jung Hyung-sik, and Cho Han-chang maintained the existing precedent, stating that the provision is in accordance with the Constitution to ensure that those fulfilling military duties are not discriminated against and does not violate the right to equality.
These justices stated, "While methods to recognize exceptions for other reasons could be considered, it is difficult to legislate those reasons or their durations uniformly," adding, "The more exceptions are recognized, the more issues regarding fairness in exam opportunities and pass rates may arise, risking a decline in the reliability of the examination system."
However, Justices Kim Sang-hwan, Kim Bok-hyung, Jung Gye-sun, Ma Eun-hyuk, and Oh Young-jun issued a non-conforming opinion, stating, "It infringes upon the freedom of occupational choice for bar exam candidates who are unable to properly take the exam due to pregnancy and childbirth."
These five justices particularly emphasized the "state's duty to protect motherhood" under the Constitution.
They explained, "Since an appropriate birth rate and population are fundamental elements for the existence and development of the state, issues related to motherhood are directly linked to the interests of the community."
They further pointed out that if necessary measures are not taken in areas where protection of motherhood is required, motherhood will suffer structural disadvantages due to such neglect.
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Specifically, noting that 1,674 women (88.2% of the 1,897 female applicants) for the 15th Bar Exam this year were between the ages of 25 and 35, they explained, "The majority of female candidates prepare for and take the bar exam during the period in their life cycle when they may plan or undergo pregnancy and childbirth."
They argued that if a candidate becomes pregnant or gives birth during exam preparation, they face significant physical and mental burdens—such as morning sickness, hormonal changes, and the pain of childbirth—making it impossible to prepare for the exam normally, and they are further placed under stress as the application deadline approaches.
Furthermore, they explained that candidates who are preparing for or planning pregnancy and childbirth are effectively forced to choose between giving up at least one of their limited exam attempts or giving up their plans for pregnancy and childbirth.
Since the introduction of the Bar Examination Act in 2009, several constitutional petitions have been filed, but the Constitutional Court has consistently ruled them constitutional.
https://n.news.naver.com/mnews/article/001/0016118196?sid=102
Source: https://theqoo.net/hot/4230247583