여성차별에 관한 사법의 동향

When women accuse or file suits by insisting on violations of human rights such as discrimination or violence for the reason of gender, the jurisdiction interprets and applies the law, and then determines whether or not the assertion is acknowledged considering all the circumstances. Thus the jurisdiction has a major impact on the protection of women’s human rights and the women’s relationship establishment with men and society. By the way, in the male-dominated patriarchal society, men took historically the lead and still have been taking the lead in the jurisdiction. Thus Feminist Jurisprudence(Gender Jurisprudence), which investigates the problems of laws that have been created in the patriarchal society and researches on theories and practices of legislations to realize women’s human rights and gender equality, criticizes that including prosecutors and judges, the judicial personnel tend to lay stress on the social norms on the basis of men's standpoints of view and to neglect women’s standpoint of view and human rights. On the other hand, with the current improvement of legislations, social perception and recognition of judicial professionals on women’s human rights, and with the increment of female judges, more and more the jurisdiction presents the leading legal principles on human rights of women and advances the related legislation and administration. In the 9th Korean Jurist Conference for the 120 years celebration of modern jurisdiction, with the purpose of contributing to women’s human rights and developments of jurisdiction in Korea, this paper analyzed 158 cases of Court judgments and 25 cases of Constitutional Court decisions on gender discrimination from the perspective of Feminist Jurisprudence (Gender Jurisprudence), investigated the judicial characteristics and problems on the gender discrimination, and then suggested solutions to improve problems. Among 158 cases of Court judgments on gender discrimination, 148 cases(93.7%) are filed by women. Among them, 79 cases(53.4%) are recognized by the court as the discrimination against women. In comparison, by arguing for the discrimination against men, the precedents brought by men are 10 cases(6.3%). Among them, only 1 case(10.0%) is recognized as the discrimination against men. When categorizing the recognized precedents on the discrimination against women, 52 cases(65.8%) are the most in reference to the employment area, next are 22 cases(27.9%) relevant to family area, 2 cases(2.5%) have relevance to criminal area, and 2 cases(2.5%) are associated with the suffrage in a civic organization. The Court judgements that feudal and gender discriminatory laws and customs contravene the contemporary law and order that regard dignity of individuals, women’s social participation and gender equality as important are gradually increasing. On the other hand, the cases that emphasize the patriarchal family system and traditional viewpoint on women do not acknowledge the women’s assertion of discrimination damage on the ground there was insufficient evidence, as well as the cases that show the lack of judge’s expertise and sincerity on women’s human rights, still exist. Among 25 cases of Constitutional Court decisions on gender discrimination, The number of decisions about the discrimination problems against women is 7(28.0%). This result is far less than the 18 cases(72.0%)claimed by men asserting discrimination against men. While the decisions that acknowledged the discriminations against women are 5 cases (71.4%), only 1 case (5.6%) is recognized as discrimination against men. There are a lot of decisions that solidify the prohibition of discrimination against women, women’s human rights and the gender equality that advocated by “Constitution” and invalidate the custom and legal provisions against the law and order. However, there are still such decisions that attach importance to patriarchal family system and men’s sexual freedom than women’s human rights and gender equality, or that arouse the controversy based on paternalism toward women. Based on the research analysis, for the improvement of women’s human rights and the development of jurisdiction, the main suggestions of this paper are as follows: first, it needs to strengthen the education on women’s human rights in the legal education of university (law school) and on-the-job education towards the persons who are engaged in the judicial agencies. Second, through cultivating female judicial personnel, it is necessary to reinforce the fairness and to realize the gender mainstreaming. Lastly, the gender sensitive monitor regarding enforcement process and precedents/decisions of jurisdiction is imperative, as well as the communication and collaboration of judicial authority, legal researchers and human rights activists to develop women’s human rights are required.