A Study on Discrimination based on Gender in Parental Leave ― The Relevance of the Proportionality Test to the ECtHR's Jurisprudence on Gender-Based Unequal Treatment and the Prohibition of Discrimina

서지정보

· 발행기관 : 전남대학교 공익인권법센터
· 수록지 정보 : 인권법평론 / 29호 / 337 ~ 367페이지
· 저자명 : 전형준

초록

The principle of the proportionality represents a general principle of law. Its main aim is to protect the citizen from arbitrary and improper state action and in this respect it acts as a standard of justification for interventions by the authorities. Even if this principle is not explicitly standardized in most national constitutions of the Member States of the EU or in the ECHR, it is derived from the principles of democracy and the rule of law and is generally recognized in the law of the ECHR.　The levels of the proportionality are first divided according to the legitimate aim of the legally relevant measure, then to its suitability for achieving the aim, followed by its necessity and finally the proportionality test in the narrow sense, the appropriateness of the measure.　The prerequisite for the scope of application of Art. 14 of the ECHR is that persons in comparable or legally similar situations have been treated differently.　The list of possible grounds for discrimination in Art. 14 of the ECHR is by no means exhaustive, but merely exemplary. Art. 14 of the ECHR also applies when states have granted rights beyond their obligations under the Convention, which fall within the scope of an article of the Convention.　According to the ECtHR, unequal treatment according to the criteria just listed constitutes discrimination in the sense of a violation of Art. 14of the ECHR if it lacks an objective and reasonable justification. The principle of gender equality and the related prohibition of discrimination under Article 14 of the ECHR is too important in a pluralistic and tolerant European society to justify its violation merely by referring to the margin of appreciation of the member states.　In order to achieve results in line with interests in the future, the case law of the ECtHR can build on the argumentation structure in the case of Konstantin Markin v. Russia.　The only aspect requiring improvement is the control density of appropriateness and necessity, which should be taken seriously.

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