중국 노인 취업에서의 연령차별에 관한 연구 - 건축업 청퇴령을 중심으로 -

Some local governments in People’s Republic of China(PRC) are enforcing a ban on the construction industry, which completely excludes senior citizens from employment in the construction industry. Construction industry retirement order is a measure to remove those in the relevant age group from the construction industry by stipulating in the normative document that those who cannot engage in the construction industry based on their age. In the case of senior citizens, employment in the construction industry in the relevant area is prohibited or restricted according to the construction industry retirement order. The first construction industry retirement order adopted in Shanghai city in 2019 forced senior citizens change their jobs or move to other places where there was no construction industry retirement order. Although construction industry retirement order is contrary to the principle of prohibiting retroactive legislation, this study developed a discussion to represent the right to live for those who have a reason to engage in labor even though they are elderly. Since employment is the basis for an individual’s survival and development, special care should be taken in limiting it. Construction industry retirement order limits people’s right of equality stipulated in the Constitution of PRC and freedom of occupation and profession, which can be inferred from the Constitution of PRC. The court of PRC firstly checks the existence of discrimination in the infringement of equal rights related to labor employment. Secondly determined whether there is an inevitable link between the reasons for discrimination and the work to be engaged in. And then determine whether it is reasonable discrimination. Accordingly, this study applied the principle of arbitrariness prohibition to examine whether the Jiangsu Province’s construction industry retirement order violated the equal rights of senior citizens, and found that male senior citizens under 65 years of age and male senior citizens over 65(including 65) years of age were treated differently, and that the Jiangsu Province’s construction industry retirement order violated the principle of arbitrariness prohibition. As PRC is considering how to accept freedom of occupation and profession as a fundamental right, there are no clear review standards for infringement, so the review standards used in practice with Korean and Japanese academia were discussed. And then by applying the double standard theory and stage theory, this study examined whether the construction industry retirement order violated the freedom of occupation and profession of senior citizens, and found that the purpose of enacting the construction industry retirement order was unreasonable, the method of restriction was inappropriate, and the order did not meet the minimum of infringement. As a result, the construction industry retirement order is unconstitutional.