일반적 평등권 보장과 개별적 평등권 보장

다국어 초록 (Multilingual Abstract)

There are many clauses of equal protection in the Korean Constitution. Article 11 section 1 is the most representative one. The first sentence of it says, “All citizens shall be equal before the law.” and the second sentence of it says, “There shall be no discrimination in all areas of political, economic, social or cultural life on account of sex·religion or social status.” As it stipulates sex, religion, social status as banned grounds of discrimination, the second sentence seems to be one of the specific equality rights provisions. However it has been being controversy whether the second one can be separated from the first one, and have its own function as a specific equality protection, because the second sentence regulates only three grounds of non-discrimination and it lacks other important attributes such as disability, race, sexual orientation. Also, it is debatable point how people can interpret “sex·religion or social status”. Are they examples or the only grounds of discrimination which are not allowed in our constitution?
The phrase, ‘Equality before the law’ in the first sentence means an attitude of constitution defending equal human rights, and it also can be functioned as general clause of equal protection, while ‘prohibition of discrimination based on sex, religion or social status’ in the second sentence means a compelling duty to protect specific groups from unconstitutional discrimination. Therefore the first and the second one should be understood as divided clauses. In interpreting and concreting Constitution, a text is a starting point, and original intent of legislature should be respected. Accordingly, “sex·religion or social status” should not be understood just as examples of non discrimination, but as particular characteristics endowed more powerful equal protection. In addition, the phrase of “sex·religion or social status” can present prima facie standard with which we can judge whether other discriminations on account of disability, race, sexual orientation should be strictly banned or not, because there are something in common between discriminations based on such characteristics and discriminations based on “sex·religion or social status”.