유럽연합에 있어서의 적극적 평등실현조치의 근거와 사법심사기준 - 유럽사법재판소의 판례를 중심으로 -

In order to come true a substantial equality, the nation must forbid a discrimination first of all. But non-discrimination is not sufficient to come true a substantial equality for the minority who have historically suffered prejudice in employment and educational opportunities, we need affirmative action programs to give minority group a level playing field. However, though it have been used for a accomplishment of substantial equality as a powerful method, affirmative action is a double-edged sword with the potential to violate the rights of another group, so there is an argument as a 'reverse discrimination'. Therefore, the affirmative actions must be deliberately designed to observe the constitutional limit. In order to determine whether affirmative action has observed a constitutional limit, we must establish a standard of judicial review. A standard of judicial review can be proved in specific lawsuit case, but the Republic of Korea's short history of affirmative action spanning less than two decades has not yet given the Constitutional Court the opportunity to make an explicit decision about affirmative action. But the European Court of Justice(ECJ) has developed the jurisprudence of affirmative action amid heated controversy. Therefore, a cases of the ECJ will provides a suggestions to Korea as to a standard of judicial review. According to the ECJ's judgment, (1) ECJ affirms a justification of the affirmative action itself. (2) ECJ regards affirmative action as a derogation from an individual right, therefore, the affirmative action must be subject to strict scrutiny. (3) ECJ uses `the principles of proportionality' as the standard of judicial review of the affirmative action. (4) If the object of the affirmative action is different, there is a possibility which ECJ will apply different standard of judicial review.