상대적 평등으로서 평등의 의미 ― 헌법재판소의 판례에 대한 비판을 중심으로 ―

Equality is understood as ‘relative equality’, either as a fundamental right meaning constitutional rights or as a constitutional principle as a criterion for assessing constitutional legitimacy. According to this request for relative equality, if there is no difference between the comparables and they are the same, they must be treated ‘equally’, on the other hand if there is a difference between the comparables and they are different, they should be treated ‘differentially’. Nevertheless, equality is mainly a problem if it is not treated equally according to the equality and treated differentially because equality is still marked by the equal treatment. The examination of equality, which is based on comparisons, involves three steps: ① identifying whether there is a difference between the comparables, ② checking whether there is a treatment consistent with that difference, and ③ if there is no treatment that is consistent with the difference, determining whether there is a reasonable basis for it. It is important to note that as long as equality is understood as relative equality, not only equal treatment but also differential treatment are ordered. Therefore, unlike the right to freedom, the principle of proportion, which prohibits excessive restrictions on the preconditions, cannot be applied to right to equality because there is no fixed area of ​​protection. In the examination of equality, examination criteria and examination intensity should be distinguished, and the examination intensity can be adjusted according to the extent to which freedom of formation of legislators is recognized. For example, in cases where discrimination against the socially disadvantaged is a problem, the examination intensity needs to be strengthened.