변호사시험에서 헌법판례의 출제방식

Abstract

The new system of Korean law school was designed to switch from “selecting lawyers through examination” to “training lawyers through education.” Accordingly the character of the bar examination has been changed. While there had not been any qualification for the former “judicial examination,” only law school graduates are qualified for the new “bar examination” under the new law school system. The purpose of the former judicial examination could have been regarded as failing most of the applicants, but that of the new bar examination should be considered as passing most of the applicants and rejecting only a few of the applicants. The curriculum of a law school should certainly be enough to develop the students’ professionalism and competence in lawyering. But the bar examination has only to measure the basic capacity for lawyering. Law school students must be prevented from focusing on preparation for the bar exam instead of developing themselves into competent lawyers. Question form of the bar examination is very important in order to achieve that goal. Korean bar examination is made up of three question forms: multiple-choice, case form, performance test. Constitutional law cases are inevitable material for multiple-choice questions as well as case form and performance test. Since the time of former judicial examination, it has been criticized that multiple-choice questions rely too much upon judicial precedents. In my personal opinion, the high level of reliance on precedents is less problematic than selection of precedents and composition of the questions. It must be evaded to set questions from peripheral cases instead of standard cases including significant legal rules. And it must also be avoided extracting facts from rare cases without universal phenomenon. In setting questions from standard precedents, it must also be sublated to ask only the holding of a specific case. because such questions test only memory for black letter law, but not the ability to analyze given facts and to apply rules to the facts. On the contrary, it is necessary to simplify the questions by excluding immaterial facts irrelevant to the holding of a precedent.