평등원칙 심사기준에 관한 헌법적 고찰 - 헌법재판소 결정을 분석하며 - = Constitutional Research on the Scrutiny Standards for Determining Equality Principles

다국어 초록 (Multilingual Abstract)

Article 11 (1) of the Constitution of the Republic of Korea stipulates that “All citizens shall be equal before the law, and there shall be no discrimination in political, economic, social or cultural life on account of sex, religion or social status.” It is a prerequisite to confirm the prohibition of discrimination of state act in the examination of equality rights. In order to confirm the prohibition of discrimination, it is judged whether such discrimination can be constitutionally justified.
According to the prohibition of arbitrariness, general equality principle prohibits the equal treatment of substantially the inequality arbitrarily and the unequal treatment of substantially the equality arbitrarily. The general equality principle depends on the criteria of the examination which can not be derived from the provision itself. The Korean Constitutional Court interpreted the general equality principle in such a way that only arbitrary discrimination was unconstitutional.
Beyond the prohibition of arbitrariness, the German Federal Constitutional Court formulated in 1980 for the first time that general equality principle was “infringed above all when a group of norm-addressees is treated differently from other norm-addressees, although there is no difference between such groups and they could justify the unequal treatment.” In fact, the principle of equality does not claim benefits that granted illegally in other cases for reasons of equal treatment. Equality is not achieved in an ‘illegal’ state but in a ‘lawful’ state. The illegal burden imposed by law violates the principle of equality. The statutory-imposed burden on all norm addresses can ultimately lead to equality ‘in the law’.
This does not necessarily mean that proportionality test has no place in the equality principle and that the ‘new formula’ is useless. On the one hand, the application of the ‘new formula’ should not be applied in such a way that the equality test is fully absorbed in the proportionality test. On the contrary, proportionality test has to be incorporated into the application of the equality principle. Proportionality criteria play a role in assessing the reasons that justify the discrimination. On the other hand, the application of the proportionality test to the principle of equality can not be applied to the proportionality test as such, but be accepted as a modified proportional test.