性別에 따른 平等權의 問題 - 憲法裁判所 判例를 中心으로

• 영문명: The Problem of equal right on Account of Gender - Focusing on the Constitutional Court Precedents -
• 발행기관: 한국헌법학회
• 저자명: 한상운(Han Sang-Woon) 이창훈(Lee Chang-Hoon)
• 간행물 정보: 『헌법학연구』憲法學硏究 第14卷 第1號, 137~165쪽, 전체 29쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2008.03.30

영문 초록

  The equal right of both sexes means as well as another civil rights not only the subjective right, it extends to the element of the objective public orders. Therefore Article 11, Section 1, the Constitution of the Republic of Korea orders not only that the nation should not discriminate for the reason of gender, but also that the nation takes the constitutional responsibility to accomplish the equality of both sexes in reality.
  The Article allows the nation to give various preferential treatments for women (for example, affirmative action) in order to realize effectively the equality of both sexes. The Sexes Equality Realization and Women-Amicable Affirmative Action must be understood a problem of legislation policy.
  By the way, the position of the Constitutional Court in the judicial re-view on the equal protection with regard to essential treatment may be vague. Specially, the recent decision of the Constitutional Court has been shown controversial in the case of “giving discharged soldier benefit in the exam to become a civil servant.”
  In result, the Constitutional Court"s standpoint is possibly controversial. This is because the Constitutional Court has adopted “review standard of two Step,” i.e. “Mere Rationality Test” ― “Strict Scrutiny.” But there are some inconsistency among standards that it has adopted. Standards are founded on misconception about levels of scrutiny.
  For the constitutionality of gender affirmative action, it is required to keep balance of conflicting interests between the purposes of action and disadvantages of the man. Thus the affirmative action is not unnecessarily to trammel the rights of the male employees.

목차

Ⅰ. 서설
Ⅱ. 평등의 규범적 의미와 성(性)
Ⅲ. 성차별에 대한 평등심사구조와 기준
Ⅳ. 결어
참고문헌
〈Abstract〉

키워드

평등권 양성평등권 적극적 평등실현조치 이중심사기준 엄격심사 equal rights the equal right of both sexes affirmative action review standard of two step strict scrutiny