KJC Korea
Journal Central

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This article presents a conceptual overview of the relation between discrimination and inequality in human rights. Drawing on themes from human rights theory, theories of discrimination, and egalitarian theory, it presents a conceptual mapping on which (i) the non-discrimination principle in the human rights practice is egalitarian in a status egalitarian sense, with implications for the justifiability of particular kinds of material inequality, such that specifying the sense of equality at stake becomes normatively relevant; (ii) wrongful discrimination in human rights is fruitfully understood in reference to a pluralist egalitarian framework; and (iii) material inequalities resulting from wrongful discrimination are related to but distinct from material inequalities resulting from unfairness, in ways that have ramifications for debates about measures such as affirmative action.

The Constitution does not explicitly use the term ‘child’. The expression ‘adolescents’ used in the Constitution is used as it is in various laws and regulations, and at the same time, the expression ‘child’ is also used, so a systematic interpretation of the two concepts is inevitable. However, problems of conceptual ambiguity and systematic inconsistency still arise as the concepts of children and adolescents are used at the same time. Therefore, as a legal concept, a child is unified as a person under the age of 18 (under the age of 17) and used as the same concept as a minor. It is necessary to use the parallel expression of ‘children-youth’ to tie children and youth together, only when there is a need to govern children and youth in the same law. In addition, systematizing legislation that specifies children’s rights with a focus on governed objects related to children will enhance the systematic coherence of such legislation. In order to improve the systematic coherence of child-related legislation while confirming the principle that children are subjects of constitutional rights and to construct a system of child-related legislation centered on children’s rights, it is necessary to enact the ‘Framework Act on the Rights of the Child’. The Act should specify the fact that children are subjects of constitutional rights, and enumerate liberty, equality, and social rights as children’s rights. In particular, the right to birth registration, the right to nationality, the right not to be separated from the parents, the right to participate in decision-making related to the child, the right to freedom of expression, the confidentiality of privacy, and the freedom of communication, etc. need to be specified in the ‘Framework Act on the Rights of the Child’.

Recently, discussions on the establishment of the Framework Act on the Child have been actively conducted. Regarding a situation where the problem of coordination across government bodies remains fragmented with child policies divided among ministries, it is an important time to examine the meaning and direction of the Framework Act on the child as the government takes the lead and announces its will to establish the legislation. Therefore, this manuscript reviews the progress of the implementation of the Framework Act on the Child so far, examines the context of the discussion and recent overseas cases, and identify that the goal of the Framework Act on the Child is to “imlement the Convention on the Rights of the Child”. Also, based on the reviews, it was proposed to build governance for the implementation of the Convention, establish independent national human rights institutions in the promotion and protection of the rights of the child(child rights ombudsperson), and propose legislative improvements that should be paralleled with the Framework Act on the Child. The Framework Act on the Child is not only a law that clarifies ideological orientation, but also means as the basis for policy enforcement to achieve the normative purpose. Above all, it is revealed that the main purpose of the plaintiff is to urge the government to clearly fulfill its responsibilities to keep in mind the establishment of the Framework Act on the Child so that this law does not stop at a declarative meaning or a half achievement, listing children’s rights.

The Constitutional Court of Korea has ruled against the existing laws on the crime of abortion in 2019. This article looked at the progress of discussions, focusing on the medical issues of the Constitutional Court's decision and the related legal amendment submitted to the National Assembly. In particular, this article examined the positions of the legislature, the administration, and civil society focusing on the pharmaceutical authorization and the support of medical expenses related to artificial termination of pregnancy. The abortion-related regulations are being held ineffective. Now women and doctors are not punished for abortions. However, there has been no change in women’s experience of artificial abortion in the medical field. The purpose to lose the effect of punishment for abortion was to protect women's health by institutionalizing of medical support. Therefore, this article proposed to separate the concept of abortion crime and artificial termination of pregnancy. Also this article proposed to stipulate the restriction range of artificial termination of pregnancy through a full revision of the Maternal and Child Health Act. Beyond the discussion of “normative rights”, discussions should now be made on what women want and how to support them in the medical field. Medical support for artificial termination of pregnancy is a way to secure women’s “practical” right to self-determination.

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