장애인차별금지법상 적극적 조치의 인정과 권리구제 개선방안에 대한 연구 = Research on Recognizing Affirmative Action and Improving Remedies under the Act on Prohibition of Discrimination against Persons with Disabilities and Remedies for Their Rights

다국어 초록 (Multilingual Abstract)

Korea's “Act on the Prevention of Discrimination Against Persons with Disabilities and Remedies for Rights of Persons with Disabilities” (the “Act”) was enacted in 2007 and has been in effect for more than a decade, but the first Supreme Court decision related to affirmative action was only handed down in April 2021. Lower court decisions have been handed down at a steady rate of three to four cases per year, with a relatively high number of cases in the financial and transportation sectors. The Supreme Court first recognized a claim for affirmative action under Article 48(2) of the Disability Discrimination Act in its April 1, 2021, decision, 2018 Da 203418. The issue of ‘discrimination’ against people with disabilities and the challenge of ‘effective improvement measures’ remains an important social issue. The reasons for the absence of affirmative action cases after a considerable period of time have been pointed out as (1) freedom of private autonomy or contract, (2) judicial restraint on the grounds of the separation of powers, and (3) the tendency of continental legal traditions to avoid affirmative action, which originated in the Anglo-American legal system. The Americans with Disabilities Act(ADA) identifies the failure to fulfill the duty of reasonable accommodation as a type of prohibited discriminatory behavior, which is notable because it is not found in the Equal Employment Opportunity Act or the Age Discrimination in Employment Act. As an exception to the principle of monetary damages for torts, affirmative remedies under the ADA are different in that they are aimed at creating a new state of affairs, i.e., providing a reasonable accommodation, rather than restoring an existing state of affairs. These provisions appear to have been influenced by injunctions, which are recognized as a remedy under the Americans with Disabilities Act (ADA). This study examines the significance of recent Supreme Court decisions regarding these affirmative action provisions under the ADA and how to improve the legal system. Furthermore, we will emphasize the need to introduce a mandatory enforcement lawsuit system, which is absent in the Administrative Procedure Act related to anti-discrimination and social security litigation. Mandatory enforcement actions have the nature of forcing administrative agencies to take active actions through court judgments, and their introduction can be a welcome legislative provision in terms of expanding people's rights remedies. Ultimately, the introduction of the Labor and Social Court will provide a specialized judicial remedy for social security rights, which is currently limited to administrative appeals or civil remedies.