「장애인차별금지 및 권리구제 등에 관한 법률」의 ‘장애’의 정의에 대한 입법론 연구 — 비교법적 분석ㆍ검토를 통한 논증적 접근을 중심으로 —

The Anti-Discrimination Against and Remedies for Persons with Disabilities has been enforced since 2008 in Korea. This Act defines person with disability as a person who has a disability(art.2(2)). In the Act, disability means an impairment or loss of physical or mental functions that substantially limits an individual’s personal or social activities for an extended period(art.2(1)). The definition of disability in this Act represents the medical model, focusing as it does on the functional limitations of a person. Such a definition could screens out many disabled person who are victims of discrimination but do not match the “"truly disabled"” label. The purpose of this article is to provide a basic research on the legislative change of the definition of disability in the Act by studying the definition of disability in UN, EU and foreign discrimination law. Discrimination Law has the purpose to prevent unequal treatment which is rooted in stereotypes and stigma. The definition of disability in disability discrimination laws should not describe the group protected under the law, but rather define the act declared prohibited. Thus, a disability definition is necessary but only with respect to the act of discrimination. Disability- based prejudice and stigma are always related to an actual or presumed abnormality called impairment. The definition should be related to impairment, chronic illness or malfunctions and should not be based on a certain severity of disability.