The book discusses discrimination based on sexual orientation in the jurisprudence of the European Court of Human Rights (ECtHR) and the Constitutional Court of Korea. The work provides insights into how prohibition on discrimination based on sexual orientation can be realized in South Korea with the reference of the case law of other jurisdictions including mainly from the ECtHR. The book reviews related principles and methodological tools applied in the jurisprudence of the ECtHR. Considering that the rights of sexual minorities are evolving in many jurisdictions including Europe, and this problem is currently of great importance in the constitutional and political discussion, the topic is important to the readers in Europe as well as in Korea.
Author(s): Hyun Jung Lee
Series: Interdisciplinary Studies in Human Rights, 8
Publisher: Springer
Year: 2022
Language: English
Pages: 256
City: Cham
Preface
Contents
Abbreviations
Chapter 1: Introduction
1.1 Aims of the Study
1.2 Raising the Issue
1.3 Scope of the Study
1.4 Working Definitions
1.5 Research Questions
1.6 Methodology of the Study
1.7 Structure of the Study
References
Chapter 2: Discussions on the Enforcement of Morality
2.1 Legal Philosophical Background
2.1.1 Moral Enforcement by Law
2.1.2 Implications of Legal Paternalism
2.2 Case Study in Korea: Adultery
2.2.1 Previous Decisions: Constitutional
2.2.2 The Decision of 2015: Unconstitutional
2.3 Case Study in Korea: Prohibition on Marriage Between Same Surnames and Same Places of Origin
2.3.1 The Background of the Marriage Bans
2.3.2 Criticism Based on the Principle of Proportionality
2.4 Conclusion
References
Chapter 3: Legal Recognition of Same-Sex Relationships in Korea and Europe
3.1 Sexual Orientation as Grounds Not to Discriminate
3.2 Background Information in South Korea
3.3 Legal Recognition of Same-Sex Relationships in Europe
3.4 Convergence and Divergence
3.5 Conclusion
References
Chapter 4: The Principle of Non-Discrimination and Anti-Discrimination Law
4.1 The Principle of Non-Discrimination in the European System of Human Rights
4.1.1 General Discussion
4.1.2 The Importance of the Comparator
4.2 Standards of Equality Test in Korea
4.2.1 The Prohibition of Arbitrariness
4.2.2 The Principle of Proportionality
4.2.3 Case Study of the Constitutional Court of Korea
4.3 The Principle of Non-Discrimination in the US
4.3.1 Case Study of the US Supreme Court
4.3.2 Comparative Analysis of the Korean Case
4.4 The Principle of Equality in Germany
4.4.1 The Prohibition of Arbitrariness (``Willkürverbot´´)
4.4.2 The Principle of Proportionality (``Verhältnismäßigkeit´´)
4.5 Anti-Discrimination Law
4.5.1 EU Anti-Discrimination Law
4.5.2 German Equality Law
4.5.3 British Equality Law
4.5.4 Legislation of Anti-Discrimination Law in Korea
4.5.5 Towards Korean Anti-Discrimination Legislations
4.6 Conclusion
References
Chapter 5: Principle of Proportionality in the Case Law of the ECtHR
5.1 Development of the Proportionality in a European Context
5.2 Proportionality Analysis in the Case Law of the ECtHR
5.2.1 Jurisprudence of Article 8 (Right to Respect for Private and Family Life) ECHR
5.2.1.1 Legitimate Aim
5.2.1.2 Suitability Test
5.2.1.3 Necessity Test
5.2.1.4 Proportionality in the Narrow Sense
5.2.2 Jurisprudence of Article 10 (Freedom of Expression) ECHR
5.2.2.1 Legitimate Aim and Suitability Test
5.2.2.2 Necessity Test
5.2.2.3 Proportionality in the Narrow Sense
5.2.3 Jurisprudence of Article 11 (Freedom of Assembly and Association) ECHR
5.2.3.1 The Principle of Legality
5.2.3.2 Legitimate Aim
5.2.3.3 Proportionality in the Narrow Sense
5.3 The Role of Courts and the Proportionality
5.4 Conclusion
References
Chapter 6: Other Relevant Concepts in the Case Law of the ECtHR
6.1 Positive Obligation of the State
6.1.1 General Discussions
6.1.2 Application in the Case Law
6.2 The Margin of Appreciation Doctrine
6.2.1 General Discussions
6.2.2 Application in the Case Law
6.3 The Core Right Argument
6.4 The Consensus Argument
6.5 Conclusion
References
Chapter 7: Case Analysis: Non-Criminalization of Same-Sex Relations
7.1 Towards Non-Criminalization of Same-Sex Relations in Korea
7.1.1 Criminalization of Same-Sex Relations in Korea
7.1.2 Cases of the Constitutional Court of Korea (``CCK´´)
7.1.3 Criticizing the Constitutional Court Decisions
7.1.3.1 Violation of the Principle of Legality
7.1.3.2 Violation of the Principle of Proportionality
7.1.3.3 Violation of the Principle of Non-Discrimination
7.1.4 Comparative Analysis with the ECtHR Cases
7.2 Non-Criminalization of Same-Sex Relations in India
7.2.1 Criminalization of Same-Sex Relations in India
7.2.2 The Supreme Court Decisions of India
7.3 Discussions in the United States
7.3.1 Getting Rid of the Sodomy Law
7.3.2 Further Discussions
7.4 Conclusion
References
Chapter 8: Case Analysis: Same-Sex Marriage
8.1 The Proportionality in the Same-Sex Marriage Cases of the ECtHR
8.1.1 Positive State Obligations in the Same-Sex Marriage Cases of the ECtHR
8.1.2 The Principle of Proportionality in Same-Sex Marriage Cases
8.2 Discussions of Same-Sex Marriage in Korea
8.2.1 General Discussion of Same-Sex Marriage
8.2.2 Legal Recognition of Same-Sex Marriage in Korea
8.3 Legalizing Same-Sex Marriage in Taiwan
8.3.1 The Decision of the Constitutional Court of China (Taiwan)
8.3.2 Explication of the Decision
8.4 Case Analysis: Inter-American Court of Human Rights
8.5 Conclusion
References
Chapter 9: General Conclusion
9.1 Summary of Findings
9.2 Suggestions for Further Research
9.3 Personal Reflection
9.4 Towards the Protection of Sexual Minorities in Korea
References
