Equality step by step in Korean Constitution
0
조회
0
다운로드
2
인용
0
참고문헌
키워드
초록
The desire for equal society is expressed in various ways in very different societies. The principle of equality being confirmed by many national Constitutions, the question is how we can overcome the inequality which has been formed in the society for a long time. Nowadays, it is considered that the concept of equality does not mean absolute/formal equality but relative/substantial equality. The concept of relative/substantial equality was not enough to answer to the questions of inequality in some fields where they were raised from the technical, material and/or spiritual problems. Analyzing some cases of Korean Constitutional Court, even it was not clearly determined by itself, we could find a kind of concept which has contributed to complete the concept of relative equality and to answer to the questions concerned. It could be the concept of ‘equality step by step’. The concept of equality step by step could be defined as equality, realized step by step by the policy of the State improving progressively inequality in a particular field, but in accordance with reasonable standards. In reality, this concept contributed to solve the difference between constitutional norm and constitutional reality. However, depending largely on the legislators’ discretion in achieving its goal, it could be a simple instrument of justifying legislative discrimination. In this regard, the Constitutional Court has to play some important roles in examining the equality in question. If it is concerned with limitation of rights, the concept has not to be applied in principle. And, even though it is concerned with complement of citizens’ rights, it should not result in partial preference, in particular, continuously.
Abstract
The desire for equal society is expressed in various ways in very different societies. The principle of equality being confirmed by many national Constitutions, the question is how we can overcome the inequality which has been formed in the society for a long time. Nowadays, it is considered that the concept of equality does not mean absolute/formal equality but relative/substantial equality. The concept of relative/substantial equality was not enough to answer to the questions of inequality in some fields where they were raised from the technical, material and/or spiritual problems. Analyzing some cases of Korean Constitutional Court, even it was not clearly determined by itself, we could find a kind of concept which has contributed to complete the concept of relative equality and to answer to the questions concerned. It could be the concept of ‘equality step by step’. The concept of equality step by step could be defined as equality, realized step by step by the policy of the State improving progressively inequality in a particular field, but in accordance with reasonable standards. In reality, this concept contributed to solve the difference between constitutional norm and constitutional reality. However, depending largely on the legislators’ discretion in achieving its goal, it could be a simple instrument of justifying legislative discrimination. In this regard, the Constitutional Court has to play some important roles in examining the equality in question. If it is concerned with limitation of rights, the concept has not to be applied in principle. And, even though it is concerned with complement of citizens’ rights, it should not result in partial preference, in particular, continuously.
참고문헌 (24)
- Abraham, "Freedom and the Court: Civil Rights and Liberties in the United States" (1982), OxfordUniversitypress
- Byen, Jai-Ok, "Cases on Affirmative Action", Studies on American Constitution, 3, pp.27~53 (1992)
- Byun, Hae Cheol, "Globalization and Electoral System in Korea", HUFS Law Review, 33(4), pp.137~158 (2009)
- Chang, Young-Chul, "A Study on the function of right to equality and individual rights", Public Law, 34(4), pp.193~220 (2006)
- 조홍석, "평등권에 관한 헌법재판소 판례의 분석과 전망", 공법연구, 33(5), pp.113~136 (2005), 한국공법학회
- Choi, Kap-Suhn, "The constitutional control of laws, based on the principle of proportionality", Public Law, 25(4), pp.652~671 (1997)
- Debbasch, Charles, "Les Constitutions de la France" (1983), Dalloz
- Huh, Young, "Korean Constitutional Law, 4th Ed", pp.345~ (2010), Pak young sa PublishingCo
- Jeon, Hak-seon, "La loi de parité pour l'égal accès des femmes et des hommes de la vie politique et la révision de la Constitution en France", Constitutional Law
- 김경제, "평등권'평등원칙의 검토방법 - 신상공개에 관한 헌재결 2003. 6. 26. 2002 헌가 14, 청소년의성보호에관한법률 제20조 제2항 제1호 등 위헌제청 결정과 관련하여", 공법연구, 32(4), pp.91~112 (2004), 한국공법학회
- Kim, Moon-Hyun, "Comments on the Decisions of the Constitutional Court concerning multi-levels scrutiny that are used in judging whether legislative classifications violate the Equal Protection Clause", Studies on American Constitution, ⅩⅦ(2), pp.97~133 (2006)
- 김영환, "미국의 積極的 平等實現措置(Affirmative Action)의 퇴조 경향과 대안", 헌법학연구, 15(1), pp.109~147 (2009), 한국헌법학회
- Ko, Moun Hyun, "Equality in election and Population disparity of electoral district", Public Law, 31(3), pp.331~364 (2003)
- Kwon, Young-Sung, "Constitutional Law: Atextbook" (2010), Bobmun Sa
- Sfez, Lucien, L’Egalité, "Presses Universitaires de France" (1989)
- Song, Ki-Choon, "The interpretation of discrimination prohibition causes in National Human rights Commission Act Art. 30 Sect. 2 – Focusing on the Definition of Social Status and Its Exemplary Articles", Public law, 31(2), pp.263~279 (2002)
- Suh, Ju-Shil, "On the Standard of Judicial Review for Equal Protection", Studies on American Constitution, Ⅷ, pp.1~49 (1997)
- Suh, Won-Woo, "Constitutional Approach on the Public Character of Land", Proceedings of the46thSeminarorganized, pp.33~46, PublicLawAssociation
- Sullivan, Kathleen M, "ConstitutionalLaw,14thEd", pp.750~ (2001), FoundationPress
- Sung,Nak-In, "ConstitutionalLaw,10thEd", pp.416~418 (2010), BobmunSa
- Yoon, Hoo-Jong, "Fundamental Rights and Equality" (1997), Pakyoung-Sa
- "Korean Constitutional Court Report 1, 3, 4, 7-2, 11-1, 13-2, 17-2, 19-1,2", ~