차별사건에서 소수자 법관에 대한 중립성 논쟁 검토 : 포괄적 차별금지법 제정 국면에서 법관의 다양성 확보하기

This article, based on the hopeful expectation of enacting a comprehensive anti-discrimination law in the Republic of Korea, reviews judicial impartiality as an issue to be raised against judges who would deal with discrimination cases under the law. It first looks at some legal cases raised at the United States courts after the legislation of the Civil Rights Act of 1964 to disqualify judges who had minority backgrounds based on the argument that they were biased in favor of plaintiffs, who were also members of minority groups. Although the principle of judicial impartiality applies as a general rule, the issue has been primarily raised against female or black judges, i.e. judges who are members of minority groups. This phenomenon indicates that the impartiality standard is built upon the perspective of the majority and that it may work to further exclusion of minority judges. Contrary to the misled perception that minority judges are biased, however, the experience and world-view gained as minorities contribute to the fairness of trial, because the knowledge and sensitivity help them make relevant inquiries and find the presence and effects of discrimination even when they are subtle and complex. Thus, this article argues that the courts should make caution about the misapplication of judicial impartiality principle to take a majority-centered view but find ways to enhance diversity of the judiciary. It concludes with an emphasis that courts’ effectiveness to eliminate discrimination and bring equality into the society upon legislation of the comprehensive anti-discrimination act would be dependent upon the level of equality and diversity within the courts.