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Re-examination of the guarantee of equal rights for the disabled at the constitutional level

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2021, 9(3), pp.213-238
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law
  • Received : August 10, 2021
  • Accepted : August 27, 2021
  • Published : August 31, 2021

Jeong Jeong Hee 1

1선린대학교

Candidate

ABSTRACT

Every human being can live like a human being, and he has the right to live from birth. Article 10, first sentence of our Constitution stipulates that all citizens have ‘dignity and value as a human being’ and ‘the right to lead a life worthy of human being’ (Article 34 (1)). These rights are the rights that all citizens can enjoy, and the disabled are also the right to be enjoyed as Korean citizens. In the Universal Declaration of Human Rights (1948), “All persons are born free and equal in dignity and rights” (Article 1). Furthermore, “Everyone shall have all the rights and freedoms set forth in this Declaration, without discrimination of any kind on the basis of sex, race, language, religion, political, ideological, cultural or social origin, property, birth or any other class (status), etc. is entitled to be guaranteed” (Article 2). As of the end of 2019, the number of disabled people in Korea is 5% of the total population, or about 2.62 million. Although there are cases where the cause of disability is congenital, more than 60% of cases are caused by acquired industrial accidents, traffic accidents, or unexpected accidents or diseases. Considering this reality, no one can be free from disability and cannot be excluded from it. Currently, various employment policies related to the disabled in Korea have significant implications for the right to work and equality of persons with disabilities. This is the ideological starting point and core value of the Constitution to ensure that people with disabilities can lead a humane life through a professional life that is appropriate for their individual abilities and, of course, guarantee the dignity and value of human beings. Having a job that matches the abilities of the disabled is significant in that it not only pursues material independence but also enables self-realization through social integration. However, the disabled are not free from tangible and intangible social prejudices and stigma due to the poor characteristics of disability, and as a result, they face a realistic barrier to finding a job suitable for their abilities and aptitudes. In addition, due to the characteristics of the market in which the labor market principle operates, persons with disabilities are subject to considerable restrictions in freely obtaining a place of employment on their own. In order to ensure the provision of the right to work (the right to work) in Article 32 Paragraph 1 of the Constitution, the state needs legal measures to secure the economic foundation as a means for social and economic survival of the disabled. As a result, the law enacted is the “Article 28 Paragraph 1 of the Employment Promotion and Vocational Rehabilitation Act for the Disabled (hereinafter referred to as the “Employment Act for the Disabled”). The employment law system for the disabled is broadly divided into the employment quota system, which requires mandatory employment in order to respond to the employment crisis of the disabled, and the anti-discrimination system, which prohibits various social discrimination against non-disabled people. The employment quota system has achieved tangible quantitative growth since the enactment and introduction of the Employment of Persons with Disabilities Act in 1990. In addition, as the 「Act on the Prohibition of Discrimination against Persons with Disabilities and Remedies for Rights, Etc.」 (hereinafter referred to as the “Act on the Prevention of Discrimination against Persons with Disabilities”) was enacted in 2007, the employment quota system and the anti-discrimination system coexist for social integration. Article 11 of the current Constitution, which prohibits discrimination in employment of persons with disabilities, stipulates the right to equality and the exclusion of discrimination in any form. There is a ban on unfavorable discrimination. Separately, there is the “Disability Discrimination Act,” which prohibits discrimination on the basis of disability. Therefore, in this study, we intend to discuss the direction of improvement that suits our constitution of the employment law for the disabled in today's reality, 10 years after the implementation of the anti-discrimination system for the disabled. The purpose of this study is to examine the operational problems of the employment quota system and the anti-discrimination laws, and consider the operating conditions and rights of work in advanced countries. Going one step further, this study aims to effectively guarantee and improve the social equality rights of the disabled as human beings guaranteed by our constitution.

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