국민이 꼭 알아야 할 차별금지법, 무엇이 문제인가

Abstract

The draft of Discrimination Prohibition Law submitted by Justice Party and others to the National Assembly, the draft Law of Equality proposed by the National Human Rights Commission of Korea and the draft law suggested by Democratic Party of Korea are only about the individuals’ ethical judgments or value systems, despite their needs. Namely, they stipulate ‘the sexual orientation’ extremely comprehensively although it cannot well be covered by the objective discrimination prohibition, Moreover, such provisions about the third gender concept and the gender identity have the serious problems that betray our nation’s special situations and our legal system. Hence, this study discusses the legal and realistic problems of the above draft laws from the perspectives of a professional legal expert to suggest a realistic legislative alternative. This study addresses the following problems of the draft laws. First, since there already exist many individual discrimination prohibition laws covering the specific discriminative conditions sufficiently, the argument that ‘a comprehensive discrimination prohibition law’ should be enacted because of the limits of individual laws is not valid logically. Secondly, the argument that since the remedies of the discrimination stipulated in the Law of National Human Rights Commission of Korea are not much effective, a more effective comprehensive law is required is not valid because it may well serve an excessive concentration of the administrative power. Thirdly, such concepts as ‘the sex that can hardly be classified beyond male and female’ and ‘gender identity’ may well serve to demolish ‘the citizens’ registration system or the basis for our society in view of Article 9 (obligations of central and local autonomous administrations), while they must be abused as means of evasion of the obligatory military service. Moreover, they could also serve to legalize the homosexual marriage, disintegrate the concept of the family, reverse discrimination of the females, and invalidate other important social systems. Fourthly, ‘the sexual orientation’ is an individual’s ethical value system, which means that it cannot well be covered by the objective discrimination prohibition. However, the argument that ‘sexual orientation’ or human beings’ innermost secret should be open to be protected is contradictory of itself. Fifthly, their provision that individual’s neutral expression may well be regarded as an indirect discriminating act would well infringe upon citizens’fundamental rights of religion and expression. Furthermore, this study seriously discusses the ways to inform the citizens of the above problems and cope with the above arguments. Through such discussions, the researcher expect that the individual discrimination prohibition laws would well be amended or enacted and thereby, that the current problems of discrimination would be addressed in a fair and equal way, and that a sound debate and discussion regarding the Discrimination Prohibition Law would follow. Any law should serve all of community members, while being agreed to by them, to be effective specifically and thus, should devote itself to realize a genuine Constitutional human rights and equality.