차별금지법(안)에 대한 검토와 비교를 통한 대안의 제시

Abstract

Comparative Study on Some Korean Laws and Bills against Discrimination Prof.Dr. Zoonil YI The National Human Rights Commission of Korea (NHRC) recommended the korean administration to establish an anti-discrimination law and proposed an own draft of anti-discrimination law. According to this draft, ① the indirect discrimination and the harassment are included in discriminatory practices, ② central and local government are obligated to protect discrimination, ③ the prohibition of discriminatory practices is specified by the law, ④ precautions to prevent discrimination are stipulated in the law, and ⑤ some new redemption of discrimination are introduced. Especially powerful means of redemption like the correction-order authority, the penalty of compulsory performance, the support of litigation, the punitive damages and the distribution of burden of proof are stood out conspicuously. The korean Ministry of Justice (MOJ) proposed an own Bill of anti-discrimination. Similar to the draft of the NHRC, the draft of the MOJ includes provisions related to ① the indirect discrimination and the harassment, ② the obligations of central and local government, ③ the specification of prohibited discriminatory practices, ④ the stipulation of precautions to prevent discrimination. But the correction-order authority, the penalty of compulsory performance, the support of litigation, the punitive damages and the distribution of burden of proof are excluded. In conclusion, it is resonable that the indirect discrimination and the harassment are included in the category of discrimination. Also acceptable are the prescribed obligations of central and local government, the specified prohibition of discriminatory practices and the precautions against discrimination. But the correction-order authority, the penalty of compulsory performance and the punitive damages are controversial. Most cases of discrimination are private distributes that are in essence the comparison based on different values. Therefore a resolution of distribute related to discrimination should not be a compulsory one by a third party, but an autonomous one by the both interested parties. Roles of the state are required to be limited to the support of the autonomous resolution by providing various alternative distribute resolution (ADR).