위법한 차별의 구제와 금지청구

Judicial Remedies for Discrimination and Injunction: An Analysis on Judicial Precedents Regarding Human Dignity

In the Supreme Court Case involving the exclusion of women’s enjoyment of equal privileges in a private association, the Supreme Court held that the private association s discriminatory practice may be treated as an illegal assault on human dignity, a tortious invasion violating the civil code. In determining whether a private association may discriminate illegally in denying women full membership, it established the various factors which should be considered for judicial decision. This article points out that while appreciating the judgment s significance as establishing at the very first the rule as to a private association s discriminatory practice, and while valuing that the Korean judicial approach to the cases involving the human dignity focuses on compensating victims of various tortious invasions by extending a human dignity doctrine, the standards suggested by the court in the context of an illegal assault on human dignity were too broad to be the “real standard. This should be reassessed to reduce potential illegal conducts. Since the standard depends on too many factors, it may be difficult to decide what kind of restriction should be applied in a particular case. This article, meanwhile, argues that the injunctive relief is appropriate to remedy discrimination against an individual. Injunctive relief is an ordinary relief for an assault on human dignity. The civil code offers the injunction for the real right, and the Supreme Court have regarded human dignity as having the nature of the real right. In the above case, the Supreme Court treated the discrimination as an assault on human dignity, providing the judicial tool of granting the injunctive relief in future discrimination cases. This article suggests the following as the criteria for a court to apply on awarding injunctive relief: ① permanent injunction may be awarded when the facts indicate a danger of future discrimination ② preliminary and temporary injunction may be granted under more narrowly tailored requirements, such as irreparable injury if the injunction were denied ③ affirmative relief may be refused when it comes at the expense of other persons, like the employees who were previously occupying jobs ④ the court may consider the public interest as a factor. The public interest includes the need to deter the employer from continued systemic discrimination affecting both employees and applicants.