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Korean Law Demystified!

Still Constitutional: Bar Exam Time Limit Survives Challenge Despite Divided Court

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Korea’s Constitutional Court has narrowly upheld the rule that law school graduates must pass the bar exam within five years and five attempts — with no exceptions for pregnancy, childbirth, or serious illness — even though a majority of justices found the provision unconstitutional. Here are the key points.

Issue

Does the bar exam eligibility rule — which limits graduates to five attempts within five years of graduation, with only military service recognized as a ground for extension — violate the constitutional rights of candidates who miss attempts due to pregnancy, childbirth, or serious illness?

Background

  • Under Article 7 of the Bar Examination Act, law school graduates may sit the bar exam a maximum of five times within five years of completing their degree. The only recognized exception extends the window for the duration of mandatory military service. No exception exists for pregnancy, childbirth, or illness.
  • Fourteen petitioners challenged this provision, including two whose situations illustrate the stakes directly.
  • One petitioner graduated from law school in February 2016, failed her first attempt that year, gave birth to two children, failed again in 2020, and was barred from further attempts once five years had elapsed from her first sitting — permanently losing her chance to qualify.
  • Another petitioner was diagnosed with stage-three lung cancer four months before her final permitted attempt. Surgery and chemotherapy made sitting the exam impossible. She is now unable to perform ordinary daily activities.

The Vote and Why It Matters

  • On May 21, 2026, the Constitutional Court issued a ruling of constitutionality — but only because the threshold for a finding of unconstitutionality requires six of nine justices, and only five voted that way.
  • Four justices (Kim Hyeong-du, Jeong Jeong-mi, Jeong Hyeong-sik, Jo Han-chang) voted to uphold the provision.
  • Five justices (Kim Sang-hwan, Kim Bok-hyeong, Jeong Gye-seon, Ma Eun-hyeok, Oh Yeong-jun) voted it was incompatible with the Constitution.
  • The provision survives — for now — not because a majority found it acceptable, but because the supermajority threshold was not reached.

The Case for Constitutionality (Four Justices)

  • While extending exceptions beyond military service is conceivable, defining the qualifying circumstances and their duration in legislation would be difficult and contentious.
  • Every new exception creates fairness concerns about differential opportunity and pass rates, potentially undermining public confidence in the examination system.
  • The legislature appears to have factored in the possibility that candidates might miss or fail attempts for various reasons when setting the five-attempt limit in the first place.
  • Prior precedent upholding the provision had not been shown to require revision.

The Case for Unconstitutionality (Five Justices)

  • The Constitution imposes a positive obligation on the state to protect motherhood (Article 36(2)). Applying this obligation, the provision fails the proportionality test by excessively restricting the freedom to choose an occupation for candidates who cannot sit the exam due to pregnancy or childbirth.
  • While labor and gender equality laws across Korean legislation provide various maternity protections in compliance with constitutional requirements, the Bar Examination Act contains no such provision — a gap the dissenting justices found indefensible.
  • The statistics are stark: of 3,757 applicants for the 15th bar exam in 2026, 1,897 were women. Of those women, approximately 88% were between 25 and 35 — spanning the age at which Korean women give birth to their first child on average (33.08 years). The overlap between the exam eligibility window and peak childbearing years is direct and significant.
  • A pregnant or postpartum candidate has no realistic choice: she must either sit the exam regardless of her physical condition or permanently forfeit her eligibility. That outcome is disproportionately severe and constitutes a meaningful — potentially permanent — curtailment of career opportunity.

Key Takeaways

  • The provision is technically constitutional, but only by procedural default. A majority of the court found it incompatible with the Constitution — a signal that is difficult for the legislature to ignore.
  • The military service exception creates a facially gender-asymmetric framework: the one recognized ground for extension applies almost exclusively to men, while the circumstances most likely to affect women — pregnancy and childbirth — receive no recognition.
  • The ruling leaves open a legislative fix. Petitioners’ counsel has announced plans to pursue legislative reform and to consider bringing a complaint before the United Nations.
  • Future petitions on the same issue remain possible, and a single change in the court’s composition could shift the outcome.

Why This Matters

This decision will likely be remembered less for its outcome than for its internal dynamics. Five of nine Constitutional Court justices found a law unconstitutional — and it survived anyway. For legal reformers and women’s rights advocates, the ruling is simultaneously a defeat and an opening: the margin is one vote, the dissenting reasoning is detailed and forceful, and the legislature has been put on notice that the current framework sits on fragile constitutional ground. For law school graduates currently navigating the five-year window, the practical reality remains unchanged — but the pressure for legislative correction has never been stronger.

Article: https://www.lawtimes.co.kr/news/articleView.html?idxno=221567

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