사적자치와 차별금지

Private autonomy and Anti-discrimination

Freedom and equality are essential conditions for ensuring human dignity and worth. Both values are established as an important and essential fundamental right in the Constitution. It was uneasy to establish a relationship between the two because of their uniqueness and identity, and the difference in historical background. As the principle of private autonomy or freedom of contract put on the premise of discrimination between the contract parties, it conflicts with the equality right under the Constitution, which demands prohibition of discrimination. Especially, if we understand that the private autonomy is not as the institution in private law but the fundamental right, it relates to the collision of constitutional right. In the modern social rule of law, freedom and equality are not contradictional and oppositional each other. they have a complex relationship that is the basis for their existence. So law is now able to play a role of interaction in the relation between freedom and equality actively. They are in part a relationship that underlies and sets limits each other. To all outward appearances, private autonomy and the equal rights in Constitution appear to be in tension or collision, as the traditional principle of the civil law has a limitation that must be operated within the legal order recognized by the community. To secure the contract fairness has become an important topic in civil law relations today. When the two values of freedom and equality collide, normative harmonious interpretation is needed to construct social integration and social justice, and general anti discrimination is necessary for a concrete work of balancing conflicting interests. In order to effectively remedy civil rights against violations of the contractual discrimination prohibtion, it is necessary to deter discrimination and compensate for damages corresponding to the contract process. In terms of compensation for damages, it is needed to deter the offense and protect the victim by means of punitive damages and statutory damages, and it is necessary to acknowledge the right to exclusion of interference and to claim prohibition against discrimination acts.