양성평등을 위한 적극적 평등실현조치의 헌법적 근거마련의 필요성

Necessity to prepare of the Constitutional Basis of Affirmative Action for Gender Equality

The Constitution in every nation has Equal Right Clause and it is considered as one of the most important and fundamental rights. In Article 11 of our Constitutional Law, equality before the law is mentioned. And in Section 4 of Article 32, special protection of female labor and in Section 3 of Article 34, female Welfare and elevation of interests is indicated. But throughout history, the social and structural discrimination is endured to women. though the contemporary democratic constitution includes legal protection of equal rights, traditional value-neutral interpretation of equal rights such as Gender-blindness was not sufficient to embody substantial equality. To solve the problem of the discrimination like this, the gap between legal or mechanical ideology of equality and substantial equality appears to be reduced by ‘gender affirmative action’ in present discriminatory situations. The effectiveness of gender affirmative action in eliminating discrimination and achieving substantial equality for women is obvious, but it is double-edged sword with the potential to violate the rights of men since it is a form of inequal treatment privileging the disadvantaged on the one hand, while causing reverse discrimination on the other hand. Affirmative action is an object of dispute in association with reverse discrimination and merit system. To solve this problem in the interest of social unification, This study discussed the constitutionality and constitutional limits of gender affirmative action programs in Korea. Finally to settle the problem of the reverse discrimination and unconstitutionality of affirmative action, the preparation of constitutional basis of affirmative action is required.