적극적 평등실현조치의 위헌심사기준에 대한 검토 - 남아프리카공화국의 사례를 중심으로 -

‘Affirmative Action’ aims at achieving substantive equality by redressing measures toward the historically discriminated groups. However, in the context of equality discourse, affirmative action has been considered as an exception to equal protection or a restraint against equality rights, since affirmative action inevitably brings a problem of ‘positive discrimination’. The Constitutional Court of Korea has not suggested the standard of constitutionality review for affirmative action in a clear manner, but it can be deducted from the court’s decisions that 2-track equality test applies to the matter of affirmative action as well. However when the 2-track equality test, especially proportionality test applies to the constitutionality review for affirmative action, it immediately negates the promotion of substantive equality, which affirmative action measures are designed for. Therefore it is necessary to understand affirmative action separate from the concept of discrimination and to examine the possibility of the application of independent standard of review. ‘Heerden Test’, suggested as a standard of constitutionality for affirmative action by Constitutional Court of the Republic of South Africa (CCSA), has overcome the popular understanding of 90s towards the concept of affirmative action and clarified independent meaning of Art.9 sec.2 of the Final Constitution 1996 and its significance. The contextual importance of Heerden Test lies on the fact that it applies rationality-basis review with more sophisticated yardsticks and therefore enables the court to lower the risk of jeopardizing the purpose of affirmative action legislation. South African experience suggests a solution for harmonizing two very difficult tasks: promotion of substantive equality and protection of the rights of those being discriminated by affirmative action measure.