평등심사를 위한 비교대상(집단) 설정에 관한 연구

Abstract

To scrutinize whether one's equal right is violated signifies to confirm whether essential identity is handled discriminately or essential discrimination is handled identically, being the confirmation of essential discrimination, and to judge whether such a discrimination is constitutionally justifiable. The very existence of discrimination may only be confirmed by drawing comparison between the specific group that the given law governs and other group essentially identical thereto. It needs the comparison's standpoint for comparison group design that are essentially identical to the regulated group or the excluded group. The specific standard (from the comparison's standpoint) upon which such a comparison is based is thus to be determined alongside what the concerned law signifies and intends. Further, to determine whether or not plural groups shall be recognized on an identical basis is just impossible unless such a determination is based upon the commonly superior concept which must be essentially important when considering the meaning and intent of the concerned law. Identical focus on importance constitutes essentially identical being just like that. In comparison group design, there must be a careful methodological choice between 'selection of groups within a single law' and 'selection of groups in multiple, divergent laws'. It appears that the latter is much more persuasive as, contrary to the former one where the claimant's group should be assumed as comparison group in judgment of identity between the regulated group or the excluded group, comparison group will be designed by 'looking for the comparison group out of multiple, divergent laws that governs the essentially same content', meaning that the 'essential identity' is assumed within the perspective of such laws. Considering the foregoing, the very existence of discrimination can be confirmed by judging whether, 'in multiple, divergent laws', structures or contents of such laws are contradictory or inconsistent, from the perspective of systematic legitimacy.