earticle

영어

Proportionality review criteria and prohibition of arbitrariness principle, the main criteria for discrimination, are available in the adjudication on constitutionality of laws related with the violation of equal rights. These two standards are in great use in the area of the employment-related acts to judge the violation of the prohibited discrimination, especially have great meaning in deciding whether certain disadvantages in employment are the discrimination or not. These evaluation standards on discrimination which mainly have been discussed in US and German affected the formation of Korean standards, therefore evaluation standards of Korea have much similarity with those of US and German. Proportionality review criteria as the criterion for judging employment discrimination is applied in two cases : when the constitution prohibits the unequal treatment itself and when the unequal treatment brings violations of other basic rights. Detailed criteria include the rationality and the unavoidability of discrimination, the appropriateness of methods and procedures, and the balance of the private benefit with public benefit. On the other hand, prohibition of arbitrariness principle allows the enough discretion of the legislator. If the rationality of the discriminatory law or act is acknowledged, that law or act can be justified. Eventually, the main role of the criterion for judging employment discrimination is to measure the rational reasons. Discriminatory acts which have rational ground are not concerned as a discrimination. An Actual discriminations also is not regarded as a discrimination when it has the aims to solve the discriminatory situation and to ensure the equality.