평등권 침해 여부의 3단계 심사 체계

Until now, the examination on whether the equal rights have been violated has been conducted in two stages. It is (i) whether discrimination exists, and (ii) whether discrimination is justified. However, this interpretation is contrary to the second sentence of Article 11, Paragraph 1 of the Constitution. The second sentence of Article 11, Paragraph 1 of the Constitution stipulates that ‘there shall be no discrimination’, but two conditions are attached to it. One is the reason for non-discrimination, and the other is the non-discrimination area. First, let’s look at the latter. The second sentence of Article 11, Paragraph 1 of the Constitution prohibits discrimination in all areas of political, economic, social and cultural life. However, this does not appear to have any special significance. It is difficult to assume an area in which non-discrimination is raised as an issue even though it does not fall into this area. However, the former is different. The second sentence of Article 11, Paragraph 1 of the Constitution stipulates that ‘there shall be no discrimination on account of sex, religion or social status.’ In principle, discrimination based on reasons that do not belong to the listed reasons is irrelevant to Article 11, Paragraph 1 of the Constitution. Even if the listed reasons are considered exemplary, the connotation must be inferred from them, and only discrimination based on the extensions formed therefrom is prohibited under Article 11, Paragraph 1 of the Constitution. This is a method of interpretation that justifiably understands the example enumeration theory. Analyzing Article 11, Paragraph 1 of the Constitution, it is necessary to go through following four stages. (i) does discrimination exist (ii) did discrimination occur in areas prohibited by the Constitution (iii) did the discrimination occur on grounds prohibited by the Constitution, or (iv) is the discrimination justified. However, the area in which (ii) is problematic has not yet been found. Tentatively, it is reasonable to ignore (ii) and proceed with the examination for infringement of equal rights through three steps. With this understanding, it is difficult to say that Article 11, Paragraph 1 of the Constitution prohibits all discrimination. Article 11, Paragraph 1 of the Constitution is indifferent to most discrimination. In principle, it does not order discrimination. In principle, it does not prohibit discrimination. If you understand this well, all the problems that the Constitution orders against justice or that the Constitution denies the concept of law disappear.