적극적 평등실현조치의 합헌성 심사기준에 관한 연구

Abstract

We recognize the demand of human equality as a 'Sollen' today. Therefore the contemporary democratic constitution pronounces the equal protection of the laws. Also the Constitution of the Republic of Korea is providing 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."(§11①) Nevertheless universality of equal ideology like this, the realization of substantial equality is remote yet.

In order to come true a substantial equality, the nation must forbid a discrimination first of all. But non-discrimination is not sufficient to come true a substantial equality for the minority who have historically suffered prejudice in employment and educational opportunities, we need affirmative action programs to give minority group a level playing field.

However, though it have been used for a accomplishment of substantial equality as a powerful method, affirmative action is a double-edged sword with the potential to violate the rights of another group, so there is an argument as a 'reverse discrimination'. Therefore, affirmative actions must be deliberately designed to observe the constitutional limit.

In order to determine whether affirmative action has observed a constitutional limit, we must establish a standard of judicial review. A standard of judicial review can be proved in specific lawsuit case, but the Republic of Korea's short history of affirmative action spanning less than two decades has not yet given the Constitutional Court the opportunity to make an explicit decision about affirmative action. But in the United States, often referred to as a multiracial melting pot, its Supreme Court has developed the jurisprudence of affirmative action amid heated controversy. Therefore, a cases of the U.S. Supreme Court will give Korea suggestions as to a standard of judicial review.

According to the U.S. Supreme Court, a race-conscious affirmative action would be subject to strict scrutiny, a sex-conscious affirmative action would be subject to intermediate standard of review. To pass strict scrutiny or intermediate standard of review, the affirmative action must satisfy two prongs: First, it must be justified by a 'compelling' or 'important' governmental interest. Second, the affirmative action must be 'narrowly tailored' or 'substantially related' to achieve that goal or interest. On the other hand, the appropriate considerations for finding whether the affirmative action was 'narrowly tailored' or 'substantially related' include: (1) the necessity for the relief and the efficacy of alternative remedies

and (4) the impact of the relief on the rights of third parties.

Considering that the standard of judicial review of the affirmative action is not established in Korea, the theory of the U.S. Supreme Court is very useful in Korea. Therefore, this paper aims for establishing a standard of judicial review in Korea through the reception of a theory of the U.S. Supreme Court, and this paper aims for evaluating affirmative action or preferential treatment which is executing in Korea through the application of a standard of judicial review established.

(3) the relationship between the numerical goals and the relevant labor market

(2) the flexibility and duration of the relief