성별에 따른 평등권의 문제 ― 헌법재판소 판례를 중심으로 ―

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 review 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.