The Principle of Non-Discrimination and Anti-Discrimination Law

Abstract

AbstractIt will be disproportionate if such a difference of treatment is not justified through the analysis by the principle of proportionality. It is important to determine if there is unequal treatment of individuals whose situations are similar. The Constitutional Court of Korea applied the prohibition of arbitrariness as a main standard to decide the violation of the principle of equality before 1999. Important issue in applying the principle of proportionality in the case laws of the Constitutional Court of Korea is whether the principle will be applied in the same way both to rights of freedom and rights to equality. A general and comprehensive anti-discrimination law will help to protect sexual minorities in Korea by prohibiting discrimination based on sexual orientation.Discrimination is not only the suffering of victims but also suffering of society as “the community at large suffers too since valuable resources go untapped and potential gifts remain unrealized” (Ellis and Watson, EU Anti-Discrimination Law, 2014, p. 1.). In that sense, the principle of non-discrimination in laws is very important for the victims of discrimination as well as for the community as a whole, because law “can prove highly instrumental in shaping behavior and expectations” (Ibid. p. 1.) even if it cannot do everything against discrimination. In this chapter, first, the principle of non-discrimination in the European system of human rights as a general standard of adjudication is discussed. Second, there will be a discussion of how the standards of equality test is adapted by the Constitutional Court of Korea with a specific example of its case law. I will discuss the principle of non-discrimination in the EU and Korea first because these two are the main topics to discuss in this work. Additionally, I will discuss the principle of non-discrimination in two other jurisdictions of the USA and the Germany because the principle in the two jurisdictions is discussed to have affected the case laws of the Constitutional Court of Korea. Lastly, Anti-Discrimination law will be discussed. EU Anti-Discrimination Law will be introduced because EU is the main research topic of this work. German Equality Law and British Equality Law will be additionally introduced because those two laws are particularly considered important (Ministry of Justice Korea has published research book related to Anti-Discrimination laws in other jurisdictions. German Equality Law and British Equality Law have been very importantly researched to give implications to the future legislations of Anti-discrimination law in Korea (Ministry of Justice of Korea, Anti-Discrimination Law in other countries, 2008). Part 1 focuses on German Equality Law, EU Directives, and Human Rights Law of Canada. Part 2 focuses on Anti-discrimination law in the US, France, and Part 3 focuses on British Equality Law.) laws to give implications to Korea where there is currently no comprehensive anti-discrimination legislation.KeywordsPrinciple of non-discriminationAnti-discrimination lawStandards of equality testProhibition of arbitrarinessPrinciple of proportionalityPrinciple of equality