사법시험에서의 답안지 작성 방법 위반에 대한 제재의 기본권 침해 여부- 헌재 2008. 10. 30. 2007헌마1281 결정에 대한 평석 -

The Constitutional Court of Korea (CCK) has declared the decision that a clause in the Enforcement Rule of the Korean Bar Examination Act stipulating that when answers to two disparate questions on the Korean Bar Examination are switched and recorded on the wrong answer sheets, answers to both questions are to be given a score of 0 points is not unconstitutional. First, when this decision is examined from the perspective of procedural law, a question regarding whether or not the interests of rights protection can be acknowledged is inevitable. This is because even if the CCK decides that the clause is unconstitutional, there is no room for retraction of the disposition of a failure to pass the examination on the claimant. In other words, even if a decision of unconstitutionality is declared regarding this case, there is no room for enhancement of the claimant’s legal status. If so, then the valid conclusion would be to dismiss the case for the reason that the interests of rights protection were not acknowledged. The court opinion regarding the doctrine of immediacy was based on traditional precedent theory. In contrast, the argument of the dissenting opinion, which was premised on subsidiarity, rejected traditional arguments. In recent precedents, decisions have been presented through court opinions in many cases as well. If the doctrine of immediacy is ungrounded on laws and the doctrine of immediacy is a special request from subsidiarity demanded of complaints against laws, then it would be sufficient to resolve this problem as one of subsidiarity. When dispositions based on laws exist, remedial procedures contesting such dispositions must be undergone. It is difficult to understand the CCK’s conclusion that the clause does not violate the principle of proportionality. It is also questionable whether “secur[ing] the promptness, fairness, and efficiency of grading” can be evaluated as a valid legislative purpose restricting the claimant’s basic rights. That an individual who impedes the promptness of grading by switching answers in recording them on the answer sheets must be categorically subjected to a disposition of a failure to pass the examination regardless of how outstanding his or her vocational skills are as a legal professional is excessively harsh on the party involved. Although the CCK addressed the issue of equality in this decision, it omitted demonstrations regarding the point that the element of discrimination was either enumerated in the latter part of Article 11(1) of the Constitution or equivalent to the reasons enumerated. A disposition of a failure to pass the examination on the examinee for the simple mistake of recording answers on the wrong answer sheets regardless of how high his or her scores are violates the principle of self-responsibility. The degree of sanctions is excessively large in comparison with the degree of the claimant’s mistake.