장애인차별금지법상 과도한 부담 항변과 적극적 구제조치상 법원의 재량 – 영화 상영업자의 자막, 수어, 화면해설 등의 편의제공의무를 중심으로 –

The Anti-Discrimination against Persons with Disabilities Act(ADPDA) has been in effect for over 15 years. Over the past 15 years, there have been approximately 28 decisions issuing injunction under the Act, an average of two per year. This is a very small number compared to the more than 10,000 cases in the United States under the Americans with Disabilities Act(ADA) as of 2017, which was a model for the ADPDA. Injunction under the ADPDA is modeled after the injunctions provided for in the U.S. Civil Rights Act and ADA as remedies for discrimination. Korean courts have recognized the broad discretion of courts to grant injunctive relief under the the ADPDA. However, the manner in which this discretion has been exercised in cases involving injunction has contributed to the curtailment of injunction under the ADPDA. It is necessary to reduce the scope of the discretion as to the issuance of injunction and to make it exceptional under certain categorized circumstances. It is necessary to ensure that the undue burden defense and the discretion as to the issuance of injunction do not overlap, and to ensure that the undue burden defense structure envisioned by the ADPDA works properly. There should be no discretion as to whether or not to grant injunction, or the scope or content of such remedies, in relation to the obligation of movie theaters to provide closed captioning and closed captioning devices under the ADPDA and its implementing regulations. It is necessary to develop an interpretive theory regarding the defenses of undue burden and undue hardship envisioned by the ADPDA. When determining whether the cost of implementing an accommodation obligation is an undue burden, it is essential to separate and calculate the ratio of the cost of the accommodation to the revenue of each defendant. In determining whether it is an undue burden, alternative measures may be considered, but it is necessary to consider whether the alternative measures would actually ensure at least equal access for persons with disabilities. In addition, in a disability discrimination case, if the plaintiff's claim is based on a reasonable basis, even if the plaintiff loses in part or in whole, he or she should not be required to pay the litigation cost of the losing portion of the case, including attorneys' fees. Of course, if the plaintiff wins, the defendant can be ordered to bear the costs in accordance with the principle. It is necessary to secure the normative power of the ADPDA by encouraging more lawsuits by persons with disabilities who have been victims of discrimination.