평등심사의 구조와 단계

Abstract

The essence of equality lies in comparison, and comparison is carried out in relation to the treatment of objects under comparison. There may or may not be inherent differences between objects under comparison and in the treatment of these objects. If there is no inherent difference between objects under comparison, identical treatment should be applied to such objects under comparison. On the other hand, if there is an inherent difference between objects under comparison, differential treatment should be applied to them. If one wants to justify providing differential treatment to comparison subjects when there is no inherent difference among them, or identical treatment when there is an inherent difference, one must present a rational reason for such justification. According to the structure of equality assessment, the stages of equality assessment are composed of ① verifying the existence of differences between objects under comparison, ② verifying the existence of differences in treatment towards objects under comparison, and ③ confirming the presence of rational reasons to justify discrepancies when there is inconsistency between the differences among objects under comparison subjects and the differences in treatment towards them.
 The structure and stages of equality assessment can be applied to evaluate decisions of the Constitutional Court in cases where only males are subjected to mandatory military service or in cases allowing only females to enroll in law schools or pharmacy colleges. In the case of military service, the debate may revolve around whether there is an inherent difference between males and females, who are the objects under comparison. However, in the context of academics, the question of whether there is an inherent difference between males and females, who are the objects under comparison, may not be a subject of debate. Instead, the controversy may arise regarding whether the 5% differential treatment observed in law schools and the approximately 18% differential treatment observed in pharmacy colleges constitutes an inherent difference. In cases related to military service, if there is no inherent difference between males and females, a rational reason must be provided to justify the differential treatment of imposing mandatory military service only on males. For females, the potential double disadvantage of handling both academic responsibilities and military service, given potential interruptions due to pregnancy and childbirth, could be presented as a rational reason. Regarding academics, if there is an inherent difference in the treatment of males and females who are the objects under comparison, a rational reason must be presented to justify such unfavorable treatment. The historical disadvantage faced by females in legal and pharmaceutical professions could be presented as a rational reason.