장애인차별금지 및 권리구제 등에 관한 법률에 대한 소고

Abstract

I have reviewed the Korea’s “Act on the Prohibition of Discrimination against Disabled Persons, Remedy against Infringement of their Rights, etc (KDDA).” The KDDA was enacted in April, 2007. After quite bitter arguments over the type and contents of the legislation, it was finally legislated as a separate law regulating only discrimination against disabled persons, not in the form of law handling discrimination for all various reasons. The KDDA, as the result of disputes of several years and review of all the precedent foreign relevant laws, is quite a good and reasonable legislative product from the perspective of its purpose of enactment. The purpose of the KDDA is to prohibit discrimination on the basis of disability in all aspects of life, and to effectively safeguard the rights and interests of individuals discriminated against on the ground of disability, thus enabling them to fully participate in society and establish their right to equality which will ensure their human dignity and sense of value. However, I think there are some points to be further refurbished. According to the KDDA, disability means a physical or mental impairment or loss of function that substantially limits an individual’s personal or social activities for an extended period of time. I would like to suggest that the KDDA should give more weight on the social aspect of the disability notion. Disability, not as a factor carried by disabled persons but as the one perceived by other members of society, should be the key reason of discriminations regulated and forbidden by the KDDA. In the same line, I would like to suggest the definition of disability of the “Americans with Disabilities Act (ADA) of 1990” of the U.S.A to be reflected in the future revision of the KDDA, in terms of the disability regarded and perceived by the others. I have also reviewed the duty to provide legitimate conveniences to the disabled persons without justifiable grounds. The duty is very important as a precondition to be satisfied, before judging whether there is any indirect discrimination against disabled persons. I would like to suggest that the legitimate exclusion and exemptions of the duty shall be further diminished. To do so, governmental financial support for small businesses is also required. And, as for the shift of burden of proof, I have reviewed the KDDA and found the current statements of it is quite reasonable from the perspective of reality of the litigations process. I have also reviewed the matter of findings of discriminations especially when there are two or more causes exist for one discrimination. The KDDA states that if a disability is deemed to be a primary cause of such discrimination, then such act shall be deemed discrimination under the KDDA. My opinion is that if a disability is one of the substantial causes of a discrimination, then such act should fall under a category of forbidden discrimination. I would like to suggest a revision of the KDDA in this regard. And last, as for the judicial relief for the victims of the illegal discrimination against on the basis of disability, more active roles of the courts are required especially in terms of proactive measures to improve working conditions. In addition to that, punitive damage reimbursement is also preferable to be included in the future revision of the KDDA.