The Burden of the Judicial Exam for Trainees in Companies Will Fall on Entrepreneurs

For a trainee lawyer in a company, the condition for taking the judicial exam is 36 months of practice, which is therefore mandatory, but there is no regulation regarding its financing.

Written by: Prof. Dr. Hrvoje Kačer
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Due to the increasingly complex legal system, it is no longer sufficient for any entrepreneur to meet with their lawyer once a week, once a month, or even less frequently. The necessity arises for the entrepreneur to possess at least basic legal knowledge, among other things, to be able to control their legal advisor (who will usually be a lawyer, at least for larger matters and decisions) or, if possible, to have an organized legal department, even if it consists of just one person or even a person who does not work full-time. At first glance, it seems that finding qualified personnel is not a big problem, as there are many law graduates, but for a long time now, a diploma alone has not been a sufficient formal reference; rather, a judicial exam is required as if it were something customary. This is especially true since the key procedural regulation, the Civil Procedure Act, was amended in July 2008 (the change came into effect on October 1, 2008), including in the area of representation, so that a revision as an extraordinary and very important legal remedy cannot be submitted by a person who has not passed the judicial exam.

This applies to both natural and legal persons, so either the entrepreneur must have passed the judicial exam themselves or have such a person in employment. In any case, the signatory of the revision must have passed the judicial exam, and if they have not, it is considered that the revision has not been submitted at all, which is a very significant effect, in certain cases almost catastrophic. It is evident, therefore, that the legislator is placing increasing importance on the judicial exam both in formal and substantive terms. For this reason, the Law on Trainees in Judicial Bodies and the Judicial Exam has prescribed a number of novelties.

Different Types of Practice

This law came into effect on January 1, 2009, but all persons who acquired the right to take the judicial exam (but have not passed it) by that date have the right to take the judicial exam according to previous regulations until August 31, 2009. Given the rather tightened conditions, anyone who can fit into this exception should take advantage of it, with the remaining period of almost seven months, along with quality work and quality initial knowledge, certainly being sufficient for exam preparation.

The law prescribes that a judicial trainee must spend at least four months in the civil department of the first instance, two months in the criminal first instance department, one month in the second instance civil and one month in the second instance criminal department, and two months each in the commercial court and the state attorney’s office. However, a lawyer employed by any legal entity, that is, in a company, must complete the aforementioned practice, but it is half as long. The request to enable such practice can be submitted after completing one year of work in legal matters. For lawyers employed by entrepreneurs, the law also prescribes a theoretical part of professional education of at least 150 hours according to a program aligned with the program of the Judicial Academy.

At the Expense of the Budget

The condition for taking the judicial exam is 18 months of practice in legal matters for a trainee employed at a court, with a lawyer, and a public notary, while for all others, a double period of 36 months applies (also in legal matters), and this is not as before, only under the condition of practice in legal matters, but also under the condition that they have completed practice at courts in a period half as short as for judicial trainees.

Unfortunately, the law did not specify anything about the financing of mandatory practice, but only stated that the minister responsible for judicial affairs will adopt a regulation that will determine both the manner of conducting and financing. It would certainly be not only better but also more in line with the Constitution if the law had set at least some frameworks for that regulation because education is a public interest, not just the interest of the person with whom the lawyer is currently employed.

It is evident that a strict approach has begun, and this should be welcomed, but it remains to be seen whether the implementation will be such or whether (as has happened many times before) a good idea will be compromised in implementation somewhere ‘along the way.’ A judiciary with high-quality personnel is a condition for progress, and it is good that the legislator has recognized this. It would be beneficial if professional education were a burden on the state budget, not on entrepreneurs who employ lawyers, as entrepreneurs need to be provided with working conditions (including staffing) and from their turnover and profit, that is, income, to fill the budget.

Stricter Judicial Exam

During the practice, each trainee, including those employed by entrepreneurs, receives a mentor who monitors their work, guides them, and supervises them. When the mentor assesses that the trainee is sufficiently qualified, they will allow them to conduct some procedural actions under supervision. The grand finale of the trainee’s professional development is the passing of the judicial exam, which is organized in the written part at the Ministry of Justice between the 60th and 90th day from the application. The exam is now divided into two parts. The first part, written, consists of three papers – one from the civil area, the second from the criminal area – that is, the drafting of court judgments, and the third is from labor, commercial, or administrative law; the candidate chooses the area themselves. Each written paper is graded with a maximum of 10 points, and the candidate must obtain at least six points from civil and criminal judgments to be eligible to take the oral exam. The oral exam can yield a maximum of 70 points. A candidate has passed the judicial exam if they achieve a total of at least 56 points. Despite achieving the minimum points, if the candidate receives less than five points in any subject group, they are considered to have failed the judicial exam. The law prescribes that judicial exams are conducted by an examination commission consisting of five members (the conditions for membership are very strict, like for a judge of the Supreme Court of the Republic of Croatia) appointed by the Minister of Justice.