적극적 우대조치의 합헌성에 대한 연구 - 여성을 위한 적극적 평등조치로서 여성채용목표제와 양성평등채용목표제에 관한 판단을 중심으로

The study about a constitutionality of the affirmative action

&nbsp;&nbsp;In modern countries, the equality means the "substantial equality" which pursue "economical quality" and "consequential equality". Attains like this substantial equality as one of the means for a thing which being presented "the affirmative action" is. This policy is based on a thinking which is needed a compensation for the social and economical weak in order to a achievement of the "substantial equality".<BR>&nbsp;&nbsp;In the U.S., a theory which make amends to a minority human species and women for the past discrimination is gathered strength and it is a "preferential treatment". Like this preference appeared many forms of quota systems in various fields, and they are calld to "affirmative action". It have been used for a accomplishment of substantial equality as a powerful mathod in the U.S.. Affirmative action is performed by not the special ability or grades of a person, but the objective thing like human species or a sex. And it needs a sacrifice of the some guys, so there is an argument as a "Reverse discrimination".<BR>&nbsp;&nbsp;Our Constitutional Court indicates three points as a feature of the affirmative action. First, it gives a benefit as a not a one man, but a member of group, second, it pursues the equality of result, not the equality of a point, third, it must a temporary managemant which is ended when attain its object. From in this, the third feature is also an essential condition of the affirmative action. Because the affirmative action during excessive period, it can make a reverse discrimination to contrary people, and it is an unconstitutional phenomenon as a viewpoint of equality.<BR>&nbsp;&nbsp;The quota system is in link of the affirmative action, "a legal and political management for removing to the discrimination about women, and a preferential treatment until attaining a purpose rate". Specially the woman employment quota system is "a preferential employment system until attaining a legal purpose rate". The quota system is in link of the affirmative action, there is a problem about an equality like a part of affirmative action.<BR>&nbsp;&nbsp;The 3rd clause 2nd item 2nd composition of The Germany Fundamental Law has a meaning which is giving a "duty" to a country. It means that a country must act for a substantial equality between men and women, and remove a existing discrimination. Consequently, the quota system has a constitutional basis about an equality.<BR>&nbsp;&nbsp;In the American judicial precedent regarding as the affirmative action, specially about an employment or an evaluation of women is "Johnson judgement". In this case, The Supreme Court implied indirectly about constitutional condition of the affirmative action : 1) for a slowly increasing of a rate of minority human species and women, 2) not radical, and adaptability, 3) case by case.<BR>&nbsp;&nbsp;It becomes many arguments over the woman employment quota system from our country constitution, like it refers from before, not only it becomes the help in substantial equal realization of the women but also a possibility becoming the reverse discrimination to the males. to substantial equal realization of the women becomes the help, but is because is the possibility of bringing the problem of reverse discrimination in the males. our country has carried out the woman employment quota system since 1996 in various fields including members of the National Assembly, local assembly men, public service personnel, and so on. Our country switchovered early the woman employment quota system to the employment system for gender equality, and has made a application of the system from 2003 to 2007.<BR>&nbsp;&nbsp;The convert to the employment system for gender equality has made a significant contribution to calming their nerves, who understood that the system was reverse discriminational system. And it gets a foothold in a system balancing male and female taking part in. Like it refers from before, an essential condition of