평등권의 심사 기준 - 헌법 제11조 제1항 후문 사유의 성격을 중심으로 -

1. The Constitutional Court says that in a review of the issue of equality, whether a strict or relaxed standard is to be used depends on the scope of the legislative-formative power given to the legislature. However, those cases involving issues where the Constitution specially demands equality shall be scrutinized under a strict standard. If the Constitution itself designates certain standards not to be used as reason for discrimination or certain domains in which discrimination shall not take place, it is justified to strictly scrutinize the discrimination based on that standard or in that domain. Also, if differential treatment causes a great burden on the related basic rights, the legislative- formative power shall be curtailed and strictly scrutinized. (98Hun-Ma363, veterans' extra points system case) 2. Theorists and the Constitutional Court agree that the Equal Protection Clause (EPC) is a ‘fundamental right of fundamental rights’. But actually they don't respect the EPC as they do other fundamental rights; the standard of review of other fundamental rights is much stricter than with the EPC. 3. Why? This article argues that it is because the contemporary application area of the EPC is too broad. Originally, the EPC was designed to apply to different treatment on the basis of human character, that is, sex. religion and social status. 4. As the EPC was applied to different or same treatment on the basis of the character of things, the standard of review inevitably became lower. 5. This article argues that ‘only different treatment’ on the basis of ‘only the factors written in the second sentence of article 11, section 1’ should be handled as constitutionally prohibited discrimination. For this and other reasons, the standard of review should be stricter than that of other fundamental rights.