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Journal Central

다사다난했던 소의 해를 마무리하고 새로운 희망으로 호랑이의 해를 맞이하는 이 즈음 한국인권학회와 인권법학회 회원 여러분들에게 새해 인사를 드립니다. 새해 늘 건강하시고 하시는 모든 일에 많은 성취 있으시기를 기원합니다. 이제나저제나 잦아들기를 기다리던 COVID19 상황은 더욱 악화되어 가고 있고 청소년 백신접종 방역패스에 대한 기본권 침해 논란도 거세어지고 있습니다. 인권 문제에 대한 새로운 도전이 곳곳에서 촉발되고 있습니다. 이런 시국일수록 배전의 인권 감수성이 작동해야 한다는 점, 두 학회 회원님들께서도 아마 동의하실 것이라 생각합니다. 금번 쉼없는 연대와 노력의 발걸음으로 다시 한번, 기다리던 <인권연구> 4권 2호를 맞이하게 되었습니다. 소중한 결과물을 위해 애써 주신 연구자, 활동가, 편집위원 여러분들에게 깊은 감사와 존경을 표하지 않을 수 없습니다. 어려운 상황 속에서도 온기 어린 불씨를 지켜주신 노고 또한 잊을 수 없을 듯합니다. 일반논문의 장에서 라지브 나라얀, 아순타 비보 카발레르 선생님은 오래된 주제이지만 아직도 의견이 분분한 사형제도의 역사적 배경과 현황, 정치사회적 함의 등에 이어 새로이 직면하는 도전의 문제를 제시해 주셨고, 김종우 선생님은 COVID19 방역 정책에 대하여 대중매체가 드러낸 담론을 실증적으로 검토하여 구성원의 권리를 제한하는 과정에서 권위주의 배제와 위험소통의 필요성을 여실히 피력해 주셨으며, 이준일 선생님은 우리 사회의 아직도 뜨거운 감자, 차별금지법 제정의 필요성과 그 과정에서 긴요한 국가인권위원회의 역할을 강조해주셨고, 박종훈 선생님은 학생인권조례가 처음 제정된 이후 지금까지 10년간의 공과와 소중한 실천적 방안까지 제시해 주셨습니다. 또한 2021년 하반기 학술대회의 장에서는, 홍성수 선생님이 기조강연으로 1990년대 이후 우리 사회 인권의 발전과 문재인 정부 5년의 공과를, 김종우, 주윤정 선생님이 문재인 정부 및 국가인권위원회의 정책에 대한 전문가 설문조사 결과를 가감없이 발표해 주셨으며, 서현수 선생님의 사회로 <국가인권위원회 20년 – 성찰과 과제>를 주제로 여러 선생님들의 깊이 있는 대담이 소개되었습니다. 그리고 초대논단을 통하여 허일태 선생님은 인간의 존엄과 법치국가의 원칙을 토대로 경청할 만한 여러 가지 실천적 원리를 조명해 주셨습니다. 소개된 모든 내용 하나하나가 큰 울림이 아닐 수 없고, <인권연구> 4권 2호가 우리 사회 인권 증진과 보호의 여정에 뺴놓을 수 없는 튼튼한 초석이 될 것을 믿어 의심치 않습니다. 앞으로도 <인권연구>가 그 지평을 확대하고 쉼없이 발전하는 모습을 그려 보면서 헌신과 노력을 아끼지 않으신, 또한 아끼지 않으실 모든 분들과 두 학회 회원님들 모두의 안녕과 건강을 바라마지 않습니다. 감사합니다.

The article focuses on the present situation of the death penalty globally. It notes that there is an increasing trend, albeit gradually, of countries that have abolished the death penalty, but this trend faces important challenges. The article initially reflects and gives shape to to the current global situation of death penalty in numbers and with a map. It then describes the abolitionist perspective starting with a history of abolition of the death penalty. There is a brief description of the evolution of the international legal framework which reduces the scope of the death penalty with a view to eventual abolition. There is focus on regional abolitionist legal protocols in Europe and the Americas and the attempt to adopt one in Africa. The article tries to understand the retentionists ‘perspective on why countries retain the death penalty. It is argued that the increased hardening of positions by countries retaining capital punishment could be a reflection of a number of factors including penal populism, the rise of populist, ‘strong man’ leaders, increased focus on victims; that the death penalty is a sovereign issue where the death penalty is perceived as a criminal law issue and thereby in the deterrent effect of capital punishment. The article identifies some routes adopted by countries in abolishing capital punishment. More than half the number of countries has abolished the death penalty and over two-thirds do not use capital punishment in law and practice. Moreover, the number of executions has declined, and death penalty-applicable crimes are declining among retentionist countries. But the most populous countries still retain the death penalty and for achieving a tipping point, there is a need for new and more creative narratives, for establishing engagements with emerging stakeholders.

The modern democratic state is the core of the guarantee of rights. However, at the same time, a democratic state can restrict the rights of its citizens based on legitimate agreements. The restrictions of rights by the state inevitably differ from values ​​such as the people's political ideology. This study examines the discourses around the country's quarantine and restrictions on rights produced by the mass media during the COVID-19 pandemic, focusing on partisanship and state responsibility discourse. The mass media is a meaningful object for analyzing the discourse of state responsibility for rights restrictions. As a result of the study, different perspectives on the state's responsibility were revealed according to media faction. Progressive media produce discourses centered on social rights issues, such as protecting minorities and marginalized classes. On the other hand, Conservative media tend to produce discourses centered on individual liberty issues in the quarantine process. These results show that in the process of restricting the rights of members in the face of a disaster, the justification for limiting human rights can no longer be supported by an authoritarian approach alone.

The National Human Rights Commission of Korea (NHRCK) expressed its opinion on the legislation of the “Equality and Prohibition of Discrimination Act” (Equality Act), which is a general anti-discrimination act, to the National Assembly at the end of June 2020. The current Constitution of the Republic of Korea prohibits discrimination while ordering equality (Article 11-1 of the Constitution). The order of equality and the prohibition of discrimination belongs to the basic values of the Constitution. This is because, like all provision of the Constitution, the rights and values in the Constitution, which are stipulated in a general and abstract form, can only be effectively implemented when they are embodied by the legal norms established in the form of laws. The rights to equality or non-discrimination is listed as one of the basic human rights in the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights to which the Republic of Korea has joined and ratified are legal norms which has the same effect with the domestic laws of Korea. Therefore, it is necessary that the act that specifies these norms need to be legislated. Much of the equality required by the Constitution and international human rights covenants are specified by legislation. The NHRCK Act, which is currently operation as a kind of general anti-discrimination act, is basically the organizational law that the organization and authority of the NHRCK, a national human rights institution, and the procedural law that sets the procedures for relieving human rights violations or discriminatory acts. Therefore, a substantive act governing the basic and general content of discrimination must be legislated. The Human Rights Commission is a national human rights institution established to protect and promote human rights. The Commission must inform members of the national community through various channels the reason why the legislation of the Equality Act, which corresponds to a general anti-discrimination act, is urgently required, specially the reason why it is an essential prerequisites for the protection and promotion of human rights and draw support of all members of the national community for a prompt legislation of the Act. The Commission is a discrimination correcting body established to correct discrimination that infringes on the right to equality. Until a general anti-discrimination act is finally legislated, the NHRCK not only serves as a place of public discussion related to the content of the anti-discrimination law, but also supports the various opinions raised in the public forum and plays a mediating role to find a common denominator that everyone can agree on. The Human Rights Commission acts as a mediator or coordinator to rationally resolve social conflicts that may arise from human rights violations. The NHRCK, which responsible for reconciling social conflicts that may arise from human rights violations, should examine whether a general anti-discrimination act can actually cause social conflicts and come up with an alternative that can satisfy all the conflicting groups.

Ten years have passed since the first enactment of the Students’ Rights Ordinance. The Students’ Rights Ordinance (from here on referred to as “Students Rights Ordinance”) has been a ‘hot potato’ in our society since the beginning. However, a total of seven local governments have enacted this ordinance during the last ten years. The Students Rights Ordinance has achieved meaningful results in both administrative and judicial side. First of all, the Students Rights Ordinance institutionalized the establishment of an organization which protects students’ human rights, and helped the successful settling of systematic human rights administration. In addition, through the judicial decisions, it was possible to reaffirm the rights guaranteed to students along with the legitimacy of undertaking the affair and establishing an organization related to Students Rights under the Office of Education. On the other hand, attempts were made to quantify and verify the effect of the Students Rights Ordinance, but no significant results were obtained. Also, other limitations such as the perfunctory performance of students rights administration and the fixation of conflict structure between students rights and teacher rights have emerged after the enactment. Above all, since the Students Rights Ordinance lacks the enforceability, it raised questions about the effectiveness of the enactment. In order to overcome the limitations of the Students Rights Ordinance and to deliver the sustainable results of the enactment, this study proposed three major measures which could be performed by each individual units. First, individual schools should carry out the Students Rights Ordinace in accordance with civil education. Also the system or organization dedicated to students' human rights should be established within schools in order to deal with issues related to students rights. Secondly, in order to strengthen the actual biding force of the Students Rights Ordinace, the Office of Education should ensure the independence of the Advocate Officer of Students’ Human Rights and reinforce its function as an ombudsperson. Lastly, the State should assure students’ human rights education to be systematically implemented within the official curriculum. Also, in order to overcome the limitations of the Students Rights Ordinance, the contents of the Students’ Human Rights Ordinance should be enacted in the form of ‘Students’ Human Rights Act’.

It would not be an easy task to review President Moon’s Government from the viewpoint of human rights. This is because human rights is a very broad term covering almost every government’s policies. More detailed reviews should be tried next time and this article will address some issues during the period of President Moon’s Government. Most of all, this article focuses on the development of human rights in Korea since 1990’s and on the human rights policy agendas which were given to President Moon’s Government. The human rights discourse in Korea since 1990’s has the following features: 1) using the international human rights system, 2) the appearance of detailed human rights issues, 3) from human rights violation to discrimination, 4) the institutionalization of human rights, 5) the localization of human rights, 6) the proliferation of human rights education, and 7) the proliferation of human rights research. However, these tasks were not addressed in the previous two Govenments so that President Moon’s Government had to develop these tasks more actively. However, President Moon’s Government were reluctant to execute human rights polices and the outcome were not satisfactory. We need to analyze the reason of this disappointing result and then it would be possible to propose what is needed for the next Government to execute human rights policies.

In November 2021, Korean Association of Human Rights Studies(KAHRS) conducted an expert survey on the policies of the current Moon Jae-in government and the National Human Rights Commission to review the current situation of social and human rights in Korea and select future tasks. As a result of the survey, the evaluation that the human rights situation in Korea was generally flat prevailed. More than half of the respondents said that the level of improvement in the human rights situation and human rights policies of the Moon Jae-in administration was insufficient. Although the budget and organization of the National Human Rights Commission of Korea increased to a certain extent, more than half of the respondents said that the leadership of key members was insufficient. Among human rights-related policies, many responded that the areas of anti-discrimination, climate change, human rights, and labor were insufficient. However, these human rights areas were also selected as important future tasks in the future. Under these circumstances, the mention of human rights in the president's speeches has continued to decrease since 2018.

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When human dignity means “the self-existence of a human being with a personality and the value of existence for all human beings themselves and for their own purposes at the same time”, the basis for human dignity is as follows. Humans formed the economy, culture, and social order in solidarity and cooperation with others for their own freedom and safety, and the human society thus formed the basis for the maintenance of individual freedom, peace, and just life. This ability of humans has been structured to “recognize the superior ability to be fundamentally distinguished from other living things about themselves and to be recognized as a subject worthy of respect for themselves.” Human beings are subjects who have served and devoted to the development of the society to which they belong. If we have formed a human society that deserves human life through the service and sacrifice of other humans, the society is responsible for serving such humans as a decent object. If you are a mature human being, you are the subject who is responsible for forming a healthy and peaceful society by grasping your correct behavioral guidelines as your own insight. As a burden on humans' responsibility for human society, society or the state should make humans the object of dignity. If humans are so dignified from the state or society, they must be a society that presupposes a form of governance that can guarantee the basic values of human society through free and democratic political participation, and on the other hand, the rule of law can be guaranteed to fully enjoy human self-determination and happiness. When this rule of law means a code of conduct so that human dignity and value can be sufficiently lost within a social community, the following practical principles must be faithfully operated, including the organization of state power ‘the principle of checks and balances’. Since the rule of law places the realization of freedom, peace, and justice of the people, the state action must comply with procedural and formal requirements such as clarity, specificity, computability and predictability, objectivity, and safety. The rule of law should be based on the principle of excessive prohibition or proportionality regarding the formation and administrative action of legislation. When judging the principle of proportionality, the legitimacy of the purpose, the suitability of the means, the minimum damage, and the balance of legal interests should be recognized as important evaluation criteria. The principle of presumption of innocence and the principle of due process, including the principle of legality, must be thoroughly observed. Therefore, judicial activism by judges should be unacceptable. The rule of law should not infringe on the essential content of basic rights under the constitution. In particular, there should be no inherent infringement on life and body freedom, equal rights, and private autonomy. For example, since life is the backbone of human dignity, deprivation of life cannot be allowed in any case, so the death penalty as a punishment system is never acceptable in our constitution and actual law.