변호사시험 형사법 사례형 시험의 출제방향

Abstract

After a lot of debate, law school system similar to that of american law school has been introduced in Korea, now we come close to the first bar examination. The type, level and any other criteria of the bar examination is very important, because it will determine the future direction of the law school education. The purpose of this paper is to think over some desirable criteria for making questions of essay type bar examination of criminal law and criminal procedure. Due to the close relation of law school education and bar examination, a discussion is to start from the ideal type of a jurist, that should be sought after in law school education. The judicial practice has been until now criticised, the jurists(including judges, prosecutors and lawyers) memorize unconditionally judicial precedents and laws and regulations and apply them to the facts automatically or mechanically. The education and training of the law school should be based on the reflection on the past established practice. Therefore we should discuss, how the law school students can develop the ability of critical consideration on the existing judicial practices. So we should emphasis on logical argumentation, critical thinking, creative consideration,humanity and ethical mind and so on in the newly introduced education system. The questions of the bar examination should be made in relation with these abilities. The degree of difficulty of the bar examination is another theme of the discussion. It is my opinion that the exam should not be too difficult. If the questions are too complicated and difficult, the law school will depend on teaching and learning by rote. It is far from the initial goal of new law school system. The bar examination is to be qualification test, that measures the minimum ability of lawyers. It has been also debated up to now, special laws are to be included in the exam, if so, how much proportion special laws should take in the exam. Our current law system does not allow us to solve the cases without special laws, so they can not completely be excluded. However there is no choice for students but memory of them, if they are the main subject of examination. So we should keep the ratio of the special laws in the exam to the minimum. We have also discussed, how we use judicial precedents in the exam. In my opinion, the questions are to be made on the basis of leading cases. Moreover precedents should be used in the way, not how much students memorize, but how students analyse and criticise them. There are so many another issues to consider as to the bar exam. We should continue to discuss all these themes, so we can reduce the trial and errors and settle the law school system as early as possible.