헌법 제11조 제1항 제1문에 관한 一考

Abstract

Article 11, Paragraph 1, Clause 1 of the Constitution states, “All citizens shall be equal before the law”. This clause recognizes: 1) the principle of equality and the right to equality, 2) that this equality encompasses not only equality in the application of the law but also equality in the content of the law, and 3) that it ensures relative equality in essence, which is the current mainstream interpretation. However, this existing mainstream interpretation can be criticized for several reasons: 1) The right to equality is difficult to embrace in Article 37, Paragraph 2 of the Constitution, “the freedoms and rights of citizens”, 2) there is a concern that the requirement of “fundamental rights” for Constitutional Complaint under Article 68, Paragraph 1 of the Constitutional Court Act may become unnecessary, 3) there is a need to distinguish the concept of fundamental rights from the concept of human rights, and 4) there are criticisms regarding practical difficulties in constitutional court proceedings (such as the instability of equality review standards, problems with duplicate reviews, and issues with escape into general clauses). In fact, if we examine the historical context of Article 11, Paragraph 1, Clause 1 of the Constitution, we find differences between the interpretation of this provision in the past and the current mainstream interpretation. Looking at the constitutions of the Provisional Government of the Republic of Korea, South Korean Interim Legislative Assembly, and the drafts of the Constitution of the Republic of Korea, it can be said that the provision corresponding to Article 11, Paragraph 1, Clause 1 of the current Constitution was not so much a provision intending to recognize the right to equality as it was a provision declaring the equality of all people’s legal personalities. Furthermore, when examining the content and concept of equality, there are problems with the mainstream interpretation. Since the guarantee of freedom presupposes the request for equality for the coexistence of members of society, substantive guarantees of individual freedom of each citizen are possible only when equality is guaranteed. Therefore, equality should serve as the methodological basis for ensuring freedom. Besides, the concept of equality is a relational concept that treats ‘the same as the same and the different as different’, so it is difficult to argue that equality itself contains any value. In other words, equality itself can be seen as an empty concept. Accordingly, it is difficult to consider that including ‘equality in the content of the law’ in Article 11, Paragraph 1, Clause 1 of the Constitution aligns with the content and concept of equality. Equality serves as a premise for guaranteeing underlying fundamental rights, rather than being a fundamental right in itself. In my opinion, Article 11, Paragraph 1, Clause 1 of the Constitution declares the principle of the rule of law. The phrase “equal before the law” in Article 11, Paragraph 1, Clause 1 of the Constitution is not a fundamental right in itself. And Article 11, Paragraph 1, Clause 1 of the Constitution is not a provision containing any substantive content. it is a formal clause. Additionally, Article 11, Paragraph 1, Clause 1 of the Constitution is not a provision for treating “the same as the same and the different as different” in relative equality. This provision is an absolute declaration provision based on the premise of human and citizen. It is not a provision intended to determine whether something is the same or different based on a comparison standard.