차별판단의 쟁점들

Abstract

Equality means relative equality. According to the principle of relative equality, if ① identical treatments are given to the same objects without essential difference (essentially equals should be treated equally), and ② differential treatments are made to different objects with essential difference (essentially unequals should be treated unequally), it can be judged as the equality. On the other hand, if ① there is a rational reason for treating the essentially same objects differentially (essentially equals can be treated unequally, if there are reasonable grounds), or ② there is a rational reason for treating essentially different objects identically (essentially unequals can be treated equally, if there are reasonable grounds), it can be judged as the equality. The judgement of discrimination, meaning the negation of equality, will be made ① when there is no rational reason while differential treatments are made to the same comparable objects without any difference (different treatments for the same things without a rational reason) or ② when there is no rational reason while same treatments are made to the different comparable objects with certain difference (same treatments for the different things without a reasonable reason). Therefore, it is wrong to classify discrimination into the ‘discrimination with a rational reason’ and the ‘discrimination without a rational reason’. Discrimination is a value judgment that can be used only in the absence of a rational reason. This means that, in principle, the person claiming discrimination has to bear the burden of argument, not the person claiming equality. Discrimination is divided into direct discrimination and indirect discrimination, and discrimination includes harassment and sexual harassment. Prohibited grounds and areas of discrimination are divided into listed and non-listed categories. The criterion for judging whether non-listed grounds or areas fall within prohibited grounds or areas of discrimination is the dignity and value of human beings, which are the final basis for all basic rights guaranteed by the Constitution. The first step in the judgment of discrimination, that is, the determination of whether the comparing objects are identical, must be made in consideration of the relevant matters as a whole and comprehensively according to the meaning and purpose of the legal provisions regulating the comparing objects. The second stage of the judgement of discrimination, that is, judgment on whether the treatments of the comparing objects are identical or not, consists of two tasks. The first thing to be done is to check whether there is an essential difference between the treatments on the comparing objects (① Check whether there is a difference in treatment). And the second task is to check whether or not there is an essential difference in the treatments of the comparing objects matches (corresponds) to whether or not there is an essential difference in the comparing objects (② check whether there is correspondence of the difference between the objects and the difference between the treatments). In the third stage of the judgment of discrimination, if there is a discrepancy between the difference in the comparing objects and the difference in the treatments of comparing objects, it must be checked whether there is a rational reason for it. In the burden of proof related to discrimination, the discriminator (perpetrator) has to prove that there is a difference between the comparing objects, that there is a difference between the treatments of the comparing objects and that there is the reasonableness, if the difference between the objects and the difference between the treatments do not match, and victims of discrimination has to prove that there is the casual relation between the rohibited grounds of discrimination and the unfavorable treatment.