헌법 제11조 평등 개념에 대한 새로운 해석 － 적극적 평등 －

In modern constitutional law, equality has primarily been understood as formal equality, which emphasizes equal application of the law to all individuals and prohibits discrimination based on status, sex, or race. However, the development of capitalism has exacerbated socio-economic inequalities, highlighting the need for substantive equality. Substantive equality extends beyond prohibiting discrimination by addressing structural inequalities faced by specific groups or individuals through concrete and proactive measures. Despite this, the academic legal community and the Constitutional Court of Korea have narrowly interpreted the concept of equality under Article 11 of the Constitution, focusing mainly on the prohibition of discrimination and its rationality. Discussions on the concretization of substantive equality remain underdeveloped. To overcome these limitations, the concept of positive equality has been proposed. Positive equality moves beyond mere prohibition of discrimination, emphasizing proactive measures to achieve substantive equality. Grounded in the vulnerable subject model, which is based on the universal vulnerability of humans, this concept redefines the responsibilities of the state and the direction of legal systems. It underscores the state's active obligations to address human vulnerabilities, providing a theoretical foundation for fair resource distribution and equality in social relations. Positive equality calls for a reinterpretation of the equality clause in Article 11 of the Constitution, transitioning from the notion of negative equality to positive equality. This reinterpretation aligns with discussions on constitutional amendments and contributes to resolving the diverse and complex inequalities present in modern society. Ultimately, such changes aim to redefine the value of constitutional equality in the contemporary and future socio-political context.