The UN Convention on the Elimination of All Forms of Discrimination against Women and
kwwa  2002-10-28 15:28:01, 조회 : 421

The UN Convention on the Elimination of All Forms of Discrimination against Women and Positive Actions for its Implementation / by Sun-uk Kim / KWDI Research Reports / Women's Studies Forum. Vol.9 / December 1993  


* This paper is the condensation of the 1993 Research Report 200-2 by the
KWDI research team Han Jung-ja, Kim Sun-uk, Kim Won-hong, Kim Young-hye,
and Kim Dong-ryung.

Kim Sun-uk(Senior Researcher, KWDI)

I. INTRODUCTION

Eight years have passed since “the Convention on the Elimination of All
forms of Discrimination against Women” which was adopted by UN in 1979 was
promulgated as Act No.855 in our country. In the meantime, our government
submitted its 1st & 2nd national reports to “the UN Committee on the
Elimination of Discrimination against Women” which is an international
organization to supervise implementation of the above mentioned Convention
in each country, and the 2nd report was taken under deliberation at the
12th UN Committee on the Elimination of Discrimination against Women held
at the end of January 1993. However, our country still exhibits little
understanding of this Convention, and the government has not made positive
policies for its implementation.

This Convention is ‘a normative expression of UN policy for women’ for
eliminating all forms of discrimination in political, social, and cultural
areas under the basic recognition that discrimination against women not
only violates the principles of the equality of rights and respect for
human dignity, but also hampers the growth of the prosperity of society and
the family. In particular, it emphasizes the fact that the maternity is
socially significant, and that the upbringing of children requires a
sharing of responsibility among men and women and society as a whole. As of
January 1993, the number of nations that had ratified this Convention
reached 118, and these participant nations should follow this Convention as
a basic guideline for their policy of equality between men and women. It
means that the nations that ratified this Convention have promised to throw
their state-level efforts into eliminating legal and actual discrimination,
and that they have a duty both to try to eliminate obstacles to the
realization of equality and to promote equality by implementing positive
measures.

Accordingly, for the purpose of improving knowledge about the concept and
contents of the UN Convention of the Elimination of Discrimination and
calling for the State Parties' duty to implement this Convention, the
research has studied the positive measures for eliminating discrimination
which were adopted by many States to realize euqality in the formal sector
toward implementation of the Convention(Note : KWDI(1993), Refer to A Study
on Measures for Elimination of Discrimination against Women in the Formal
Sector of Each Country-Concerning Implementation of the UN Convention on
the Elimination of Discrimination against women.).

In this treatise, the UN Convention on the Elimination of Discrimination
against Women and positive actions for its implementation as a means for
the elimination of discrimination will be taken under legal deliberation,
and actual cases of major positive actions taken by each State will be
discussed. Here, we intend to contribute to raising understanding about the
UN Convention on the Elimination of Discrimination against Women and to
urging States as responsible parties to this Convention to establish
positive measures for implementation as a state policy.

II. THE UN CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION
AGAINST WOMEN

1. Background of the UN Convention

A. Protection of Human Rights and Equality between Sexes by the United
Nations

The United Nations, which was born for the dignity of human beings and the
peace of the world in 1945, has since its inauguration continuously put its
efforts into safeguarding human rights and realizing equality between both
sexes in the international sphere by various kinds of conventions and
declarations such as the Charter of the United Nations; the International
Declaration of Human Rights; the Convention on the Political Rights of
Women(1952); the convention on the Nationality of Married Women(1957); the
Convention of prevention of Trade in Human Life and Prostitution by
Cheating(1949); the Convention on consent on Marriage, the Minimum Age for
Marriage, and Marriage Registration(1962); and the Convention on Maternity
Protection(1952); and the conventions and recommendations related to ILO
such as the Convention on Night Work(1948), the Convention on the Equal
Wage(1951); the Convention on Prohibition of Discrimination in
Education(1960); and the International Regulations on Economic, Social, and
Cultural Rights(1966)(Note : R diger Wolfrum(Hrsg.), Handbuch Vereinte
Nationen, Verlag C. H. Beck, 1991, S. 169ff.).

If we review the development process of UN international regulations on
women, we find that there were many female protective conventions which
stated prohibition on women doing heavy labor such as night work, mining
labor and so on according to the principle that it was not appropriate for
women to do such hard work. Later, having revised and supplemented all
regulations concerning immediate matters peculiar only to women such as
changing nationality by marriage, and trade in human life, and as
originating from traditional women's status and custom, the UN has played a
role in the development of conventions from the correctional ones aimed at
the improvement of women's legal status to non-discrimination ones like the
UN Convention on the Elimination of Discrimination against Women(Note :
Hwang Young-chae(1991), “The Equality between Men and Women Guaranteed by
the International Law,” A Book of Treatises Collected to Celebrate
Professor Bae Kyung-sook's 60th Birthday, p. 953.).
The protective conventions are based on the fixed view on women which does
not think of women and men on an equal level. In other words, the premise
that women, whose physical conditions are disadvantageous to themselves
compared to men's, should be protected by means of legal prohibitions on
women's heavy labor stems from the discriminatory view in which women's
potential ability and women's judgemental ability are not acknowledged. On
the other hand, correctional conventions are the same as the protective
provisions in the sense that women's living conditions should be protected,
but these conventions attempt correction by revising the conventional laws
and other laws. The non-discriminatory conventions pay attention to the
realization of legal equality and actual equality by eliminating inequality
on the basis of the ideology of equality.

The UN Convention on the Elimination of Discrimination against Women is
the very non-discriminatory convention in which the UN policy of equality
between the sexes is reflected best.

B. Establishment of the Convention

The UN Convention on the Elimination of All Forms of Discrimination
against Women was established as one of the major projects of the UN Decade
for Women, along with the proclamation of the ‘UN Decade for Women’ from
1976 to 1985. This followed the ‘International Women's Year’ promulgated
in 1975 on the basis of various kinds of UN conventions and declarations,
such as the Charter of the United Nations, a number of the other general
conventions reflecting the UN's spirit of defending human rights in
different sectors of society, the conventions on women's rights, and the
Declaration on the Elimination of Discrimination against Women in 1967.

The introduction of this Convention in which the reasons and purposes for
adopting it are expressed reminds us of the fact that the Charter of the
United Nations, the Declaration of Human Rights, the Convention of
Management of Human Rights and a number of the other UN resolutions have
developed from the ideology of non-discrimination on the basis of sex, but
nonetheless calls our attention to the fact that discrimination against
women still continues. In fact, this Convention was adopted 12 years after
the 1967 Declaration on the Elimination of Discrimination against Women.
While the Declaration reflects abstract credos which stress legal equality,
this Convention contains a concrete call for real equality for the purpose
of expediting the realization of equal rights between men and women by
beans of abolishing all kinds of differentiations, exclusions, or
restrictions based on sex that hamper women's human rights and basic rights
in all sectors of society, such as politics, economics, society, culture,
and education.

The draft of this Convention was in the process of preparation by the
Commission on the Status of Women(CSW) since 1970. Unlike the conventional
and Western society-oriented ways of thinking, in this Convention, the
developing nations' positions are taken into consideration. This is a
non-discriminatory convention based on the ideology of equality and it is a
Magna Carta for women as well. This convention was adopted by the 34th UN
General Assembly and took effect in 1981 when 20 nations ratified it
according to Article 27 of the Convention.

C. UN Convention on the Elimination of All Forms of Discrimination against
Women and Implementation of the Nairobi Forward-looking Strategies(NFLS)

The contemporary policy on women by the United Nations is concentrated on
the regulational UN Convention on the Elimination of Discrimination against
Women and the Nairobi Forward-looking Strategies(Note : In order to
evaluate and review the UN Decade for Women, the 3rd World Conference on
Women was held in Nairobi in 1985. At this conference, strategies for
women's development towards the year 2000 containing 372 provisions was
adopted as future strategies for improvement of women's status from 1986
until 2000, and it is named Nairobi Forward-looking Strategies in short
form(For more details, refer to KWDI(1986), A Reference Collection for UN
Decade for Women, p. 143)). In other words, the NFLS recommend an action
frame work in which the Convention can be implemented in each nation(Note :
RS/CEDAW/1992/WP.2/Rev.1.).

The UN Convention on the Elimination of Discrimination against Women has
the binding force of international law. In order for all member nations to
realize equality between men and women in all social sectors, the UN
Committee on the Elimination of Discrimination against Women, recommends
ratification of the Convention to the nations which have not done so, and
the withdrawal of reservations by those which ratified it with some
reservations. It also supervises all the nations toward implementation of
the Convention. With regard to the NFLS, advocating realization of equality
between men and women through the cooperation of the international society,
the UN Commission on the Status of Women must implement it.

At the 4th World Conference on Women to be held in Peking in 1995,
comprehensive evaluation and review on implementation of the NFLS will be
conducted. Now, many conferences related to its preparation are projected
in different regions of the world.

Accordingly, the UN, centering around the UN Committee on the Elimination
of Discrimination against Women in connection with the UN Commission on the
Status of Women, is trying to realize an equal society in which the UN
Convention is completed in reality, in cooperation with the related UN
organizations such as ILO, UNESCO, and UNDP maintaining a reporting system
to the UN Economic and Social Council and the UN General Assembly(Note :
KWDI(1991), The United Nations' Projects on Women.).

2. Status of Ratification of the Convention

As of January 1993, 118 States had ratified this Convention; that is the
international document ratified by the greatest number of States in the
shortest time. This could be seen as an expression of the international
will for realization of women's rights of equality(Note : On the Status of
Ratification, see KWDI(1993), p. 233.).

In the case of Korea, the Letter of Ratification for this Convention was
submitted on December 27, 1984, and this Convention was promulgated as
Treaty No. 855 on January 7, 1985, becoming effective from January 26,
1985. At that time, the legal effectiveness of Article 9 and Clause (c),
(d), (e), (f) of Article 16, Paragraph 1 were reserved. These reservations
were relinquished but Article 9(Note : It is an article on the rights of
equality in the cases of obtaining, changing, and maintaining women's
nationality and the children's nationality.) and Clause (f) of Article 16,
Paragraph 1(Note : It is the article on the right to chose family name.) on
March 15, 1991 owing to the amendment of the Family Law.

This Convention guarantees that the State Parties can keep its interests
as mush as possible so that it allows the States to have reservations based
on special conditions of each state. Accordingly, as of 1990 when 104
States were the participants of this convention, 23 States in fact reserved
the legal operation of 88 Articles, and this Convention is one of the
conventions which has the most reservations.

However, it is very problematic to use the reservations in order to reject
implementation of the goal and purpose of this Convention against its basic
purpose, and there are number of controversies going on this subject. For
example, a lot of States including Korea reserve Article 16, which is a key
of this Convention. The reservation of this article reflects the patriarchy
of the society and is contrary to Article 5 because it means that society
with this reservation admits a fixed concept of sex roles. Also, denial of
women's domestic, social, and economic significance is often revealed in
the Family Law of the State and becomes an obstacle which exerts great
influences upon women's status in opposition to the goal and purpose of the
Convention.

As a result, if a State Party reserves the legal effectiveness on the
fundamental and substantial provisions, it means that, by giving only
formal ratification, the State would falsify the legal, political, and
social effectiveness rather than be restricted by the Convention.

For this reason, the UN Committee on the Elimination of Discrimination
against Women actively recommends that each State with reservations repeal
those reservations.

3. Duty of the States Parties

That a State ratifies this Convention and becomes a participant means
showing the political will that the State agrees with the purpose of the
Convention and will exert all state-level efforts for the attainment of
real equality in order to realize an egalitarian society. Therefore, it is
very difficult for each State to ratify the Convention which such a
political will.

Each State which becomes a participant in the Convention should take
actions to improve its various domestic laws and regulations in such a way
to meet the intent of the convention, and at the same time aim to realize
equality for women as soon as possible. Therefor, the Convention becomes
the means of improvement as such efforts of the government will serve as
incentives to change the society.

In other words, the State which has ratified the Convention has a duty to
treat women on the same footing as men in every area prescribed in the
Convention.

It means that the State agrees to expedite the policy of eliminating
discrimination against women by all proper means. Therefore, each State has
to take actions for such things as abolition of discriminative laws,
elimination of obstacles to actual realization of equality, improvement of
equality by positive measures, and elimination of judgements based on the
inferiority and/or superiority of each sex : i.e, personal manners, custom,
prejudice, and traditional practice. In order to implement this Convention
completely, a State may need to amend the national constitution or to enact
new laws, and another state may need reform in its administration.

Each State can take the most appropriate measures in such a way to meet
the level of development, culture, and its own social structure. What
ratification means is that the State is responsible both for the principle
by which the State must recognize the dignity and worth of all citizens and
for the abolition of discrimination which restricts especially women's
enjoyment of human rights and basic freedom.

Thus, the binding force of the Convention, just like international law,
strengthens the State's political will for improvement of women's status
within its nation. Also, the State has a duty to submit a government report
on legal, administrative, and other measures taken to implement the
Convention of the basis of Article 18 t0 the UN Committee on the
Elimination of Discrimination against Women(herein after referred to as
UNCEDAW).

In 1986, Korea submitted the first National Report(Note : Refer to the
Ministry of Political Affairs(2)(1990), UN Convention on the Elimination of
Discrimination against Women-the First and Second Report, Policy Reference
90-7.), which was taken to the deliberation of the 6th UNCEDAW in 1987. The
Second National Report submitted in 1989 was deliberated on at the 12th
UNCEDAW in January 1993.

4. Major Content of the Convention

This Convention demands all the State Parties to take proper measures to
eliminate all kinds of discrimination against women in political, economic,
social, cultural or any other fields under the basic perceptions that
discrimination against women is against human dignity and hampers the
growth of the prosperity of society and the family; and that maternity is
socially significant, and the upbringing of children requires a sharing of
responsibility between men and women and society as a whole. This
Convention consists of an Introduction and five parts of 30 Articles :
Articles 1 to 16 are substantial regulations and Articles 17 to 30 deal
with the progress made in the implementation of the Convention.

In Article 1 the term “discrimination against women” is defined and from
Articles 2 to 6 State parties' duties are dealt with. Articles 7 to 16
state not only the regulations regarding women's political, social, and
civil rights, and the right to choose nationality, and women's ability to
exercise legal actions, but also State Parties' legal duty to take all
appropriate measures to eradicate all the actual obstacles-prejudice,
customs, attitude, and practices-to equality for realization of these
rights on equal terms between both sexes, and to take positive actions to
ensure the application of the provisions of this Convention to realize
equality.

Now, we would like to review the contents of this Convention centering
around the major provisions stated for the elimination of discrimination
against women.

A. Definition of “Discrimination against Women”(Article 1)

In Article 1 this Convention defines the term ‘discrimination against
women' as “any distinction, exclusion, or restriction made on the basis of
sex which has the effect or purpose of impairing or nullifying the
recognition, enjoyment or exercise by women, irrespective of their marital
status, on a basis of equality of men and women, of human rights and
fundamental freedoms in the political, economic, social, cultural, civil or
any other field.”

B. States parties' Duties : Devising Positive measures

Through the provisions on States parties' Duties stated in Article 2 and
below, this Convention manifests that every State Party is responsible for
ensuring women's equal rights by law in all spheres of life. It emphasizes
the necessity for adoption by states parties of temporary special measures
aimed at accelerating de facto equality between men and women. Also, it
demands States parties to adopt special measures to modify the social and
cultural structure that allows maintenance of discrimination, and clearly
states that these positive measures shall be discontinued when the
objectives of equality of opportunity and treatment have been
achieved(Article 4 Paragraph 1).

This Convention allows its interpretation and application in the most
appropriate ways to the social and cultural structure of each State under
the premise that the States Parties will stick to the principle that it
will not discriminate by sex. On the basis of the purport of this
Convention, each State Party should try to repeal discriminatory laws and
regulations and to adopt positive measures aimed at actual elimination of
discrimination so that the present unequal conditions and structures
disadvantageous to women can be changed for improvement of women's
status(Article 4).

The appropriate measures that States Parties should undertake for
elimination of discrimination against women are as follows :

(1) To embody the principle of the equality of men and women in their
national constitutions or other appropriate legislation and to ensure the
practical realization of this principle through law and other appropriate
means (Article 2 Clause (a));

(2) To adopt appropriate legislative and other measures, including
sanctions where appropriate, prohibiting all discrimination against
women(Article 2 Clause (b));

(3) To establish legal protection of the rights of women on an equal basis
with men and to ensure through competent national tribunals and other
public institutions the effective protection of women against any act of
discrimination(Article 1 Clause (c));

(4) To refrain from engaging in any act or practice of discrimination
against women and to ensure that public authorities and institutions shall
act in conformity with this obligation (Article 2 Clause (d));

(5) To take all appropriate measures to eliminate discrimination against
women by any person, organization or enterprise (Article 2 Clause (e));

(6) To take all appropriate measures, including legislation, to modify or
abolish existing laws, regulations, customs and practices which constitute
discrimination against women (Article 2 Clause (f));

(7) To repeal all national penal provisions which constitute
discrimination against women (Article 2 Clause (g));

(8) To take, in all fields, all appropriate measures, including
legislation, to ensure the full development and advancement of women, for
the purpose of guaranteeing them exercise and enjoyment of human rights and
fundamental freedoms on a basis of equality with men (Article 3);

(9) To modify the social and cultural patterns of conduct of men and
women, with a view to achieving the elimination of prejudices and customary
and all other practices which are based on the idea of the inferiority or
the superiority of either of the sexes or on stereotyped roles for men and
women (Article 5 Clause (a));

(10) To ensure that family education includes a proper understanding of
maternity as a social function and the recognition of the common
responsibility of men and women in the upbringing and development of their
children, it being understood that the interest of the children is the
primordial consideration in all cases (Article 5 Clause (b));

(11) To take all appropriate measures, including legislation, to suppress
all forms of traffic in women and exploitation of prostitution of women
(Article 6).

C. Women's Equal Rights in Every Field

With regard to women's civil and legal status in every field, this
Convention contains such provisions that demand States Parties to take
appropriate measures to ensure to women, on equal terms with men and
without any discrimination, the rights in political and public life
(Article 7), the rights to participate in the international
organization(Article 8), the rights of nationality(Article 9), the rights
of education(Article 10), the rights in the field of employment(Article
11), the rights in health care(Article 12), economic and social
rights(Article 13), various kinds of rights relating to rural life(Article
14), women's legal capacity(Article 15), and rights relating to marriage
and family relations(Article 16).

D. Women's Rights in Childbirth

This Convention puts stress on the recognition of maternity as a social
function and demands a sharing of responsibility for the upbringing of
children between men and women.

Particularly in Article 4, it is clearly stated that special measures
aimed at protecting maternity are not considered as discrimination, and the
protection of maternity and upbringing children are considered as basic
rights and mentioned in every related field such as employment, family,
health, and education. According to Article 10, the States Parties have an
obligation to provide information and advice on family planning by means of
education programs. In Article 11 it is stated that the States Parties
should establish childcare facilities in order to help women to combine
family obligations with participation in public life, and in Article 16
that women have rights to decide freely and responsibly on the number and
spacing of their children.

E. Relation to Social and Cultural Factors

This Convention pays attention to social and cultural factors that
restrict the enjoyment of women's basic rights. On the one hand, it admits
the culture and tradition of each country. On the other hand, it has
provisions with regard to the need for changing fixed ideas, customs, and
traditions of each country that hamper the practice of women's rights.

In its introduction, it is stated “that a change in the traditional role
of men as well as the role of women in society and in the family in needed
to achieve full equality between men and women.” Also, in Article 5, this
convention demands that each State eliminates the prejudices, customary and
all other practices based on either the idea of the inferiority or the
superiority of either of the sexes or the fixed patterns of roles of men
and women.

With regard to the fixed ideas on sex roles, it recommends the revision of
textbooks(Article 10), and regarding the role of men and women it states
the equal responsibility between men and women in the provisions relating
to such subjects as family life(Article 6), education(Article 10), and
employment(Article 11).

5. UN Committee on the Elimination of Discrimination against Women

A. Status

This committee was established on the basis of the UN Convention on the
Elimination of Discrimination against Women and is an independent
organization that is not controlled by either the Economic and social
Council or the UN General Assembly. It is different from the UN Commission
on the Status of Women, which is a functional committee of the Economic and
Social Council(Note : R diger Wolfrum(1991), a.a.O., S.173.).

Because the United Nations disburses the salary of the committee members
and the expenses required for accomplishing its tasks, it is under the
control of the UN General Assembly for its budget. The convenience of the
employees of this Committee is provided by the Division for the Advancement
of Women which belongs to the Center for Social Development and
Humanitarian Affairs within the UN Secretariat in Vienna. It also has
cooperative relations with UN professional organizations like ILO, UNESCO,
WHO, and FAO.

B. Constitution and Committee Members(Article 17)

The Committee consists of twenty three experts including a chair, two
deputy-chair and one reporter. The experts shall be elected by States
Parties from among their nationals with consideration being given to
equitable geographical distribution and to the representation of the
different forms of culture as well as the principal legal systems.

The chair of the Committee, the deputy-chairs, and the reporter shall be
elected for a term of two years and the otehr members of the Committee for
a term of four years. They receive remuneration from the United Nations,
but serve in their personal capacity.

In the process of electing the Committee members, the States Parties
nominate experts of high moral standing and competence in the field dealt
with by the Convention, and then secretary-general of the United Nations
shall convene a meeting of States parties. At that meeting, for which two
thirds of the States parties shall constitute a quorum, the persons elected
to the Committee shall be nominees who obtain an absolute majority of the
votes of the representatives of States parties present and voting.

Presently, the members of the Committee are all women(Note : Refer to
KWDI(1993), p.27 for the list of the members of the Committee.).

C. Function and Task

  1) Consideration of State Reports

The committee is an organization that considers the progress made in the
implementation of the Convention, and it has a right to consider the
reprots submitted by the States Parites. The consideration of State Reports
by the Committee is a system to ensure to make the provisions of the
convention into effect.

Established in 1982, the meetings of the Committee have been held annually
at the United Nations Headquarters or at other places like Vienna as
determined by the Committee. The meetings of the Committee had been held
twelve times by the year of 1993. As of January 1993, it considered the
first reports of 69 States Parties, the second reports of 29 States
Parties, and the third report of 2 States Parties. So far, it has published
the first and second volumes of the report on consideration of the State
reports for the periods of 1982∼85 and 1986∼87(Note : UN(1989), The Work
of CEDAW, Volume Ⅰ; UN(1990), The Work of CEDAW, Volume Ⅱ.). Also, there
is a unpublished drafts for the period of 1988∼92(Note : UN(1988),
A/43/38;UN(1989), A/44/38;UN(1990), A/45/38;UN(1991), A/46/38;UN(1992),
A/47/38.).

In the first consideration of a State report, the Committee mainly points
out the problems in the process of implementing the Convention. However, in
the cases of the States parties, particularly developing countries, that
have many problems in implementing the Convention, the Committee would
advise them to correct the incomplete parts by subsequent consideration of
the State report rather than by criticizing them. In the second
consideration of the State report, much weight is placed on the measures
which had been adopted by the States Parties since the first consideration
plus actual progress in implementing the provisions of the Convention. From
the 10th meeting of the Committee(1991), on, the number of considerations
of the second States reports has increased in comparison with that of the
first States reports(Note : Refer to KWDI(1993), p.28 for the state of
consideration on the State reports.).

   2) Rights of Suggestion and Recommendation, and Duty of Reporting
(Article 21).

   a) This committee, to offer effective implementation of the Convention,
may make suggestions and general recommendations based on the examination
of reports and information received from the States Parties.

By this time, the number of the general recommendations that this
Committee determined as effective in implementing the provisions of the
Convention reached to twenty. Among them, there are important
recommendations; for example, the recommendations related to the
consideration of reports(Recommendation 1,2,3,4,11, etc.); the
recommendations on the practice of temporary special measures like priority
treatment of women, quota systems, and positive measures to improve the
integration of women in the fields of education, economy, politics,
employment and so on(Recommendation 5); the recommendations on the
establishment of effective States organization and strengthening their
functions(Recommendation 6); recommendations on expanding the opportunity
for women's participation in international organizations(Recommendation 8);
recommendations on elimination of reservations on the
Convention(Recommendation 20)(Note : Refer to op. cit., p.220).

   b) The Committee shall report annually to the General Assembly of the
United Nations on its activities through the Economic and Social Council.
This report of the Committee shall be transmitted to the Commission on the
Status of Women for its information by the secretary-general.


III. POSITIVE MEASURES AS THE MEANS OF ELIMINATING DISCRIMINATION FOR THE
IMPLEMENTATION OF THE CONVENTION

1. The Necessity for Positive Measures : Realization of Actual Equality

The States that ratified and participated in the Convention put their
State-level efforts into the elimination of legal and/or actual
discrimination. The provisions of this Convention have been reflected in
the national laws of each State so that women's legal status in each state
has been improved greatly, and the elimination of discrimination by law has
been achieved to a considerable degree. However, according to the
statistics on the proportions of males to females in such fields as labour,
education, politics, and decision-making in each State, it is common in the
reality of each State that there still exists actual discrimination against
women.

This indicates that legal equality does not mean the realization of actual
equality but only the initial stage toward it. Accordingly, the NFLS
emphasizes not only legal change but also its implementation. The General
Assembly of the United Nations which is reported to on consideration of a
State's implementation of the Convention recognizes that it is very
difficult to implement the provisions of the Convention(Note : UN,
CS/CEDAW/1990/WP. 2, No.14.).

In many a State, despite the elimination of legal discrimination,
discrimination still rematins in the customs of the State and direct and/or
indirect discrimination exists consciously and/or unconsciously. In many
cases direct discrimination is usually visible and deliberate, but
occasionally occurs in fixed ideas. Indirect discrimination means
discrimination as a result of discriminatory customary practices inspite of
aims of the State at equality between both sexes.

In other words, it means that, although laws and regulations are applied
universally without discrimination, there are cases in which discrimination
can be generated by the laws and regulations that treat, in equal terms by
law, men and women who are placed in different conditions of life, in
reality. For example, many laws and regulations related to employment are
based on the premise that all workers have the same life style, which is
stated on the basis of men as the model who neither have babies nor usually
do housework. Accordingly, if these laws are applied indiscriminatively to
men and women, discrimination against women may be the result in terms of
career employment and the like. Therefore, we have to analyze the process
in detail in which the equal status guaranteed by law can be realized,
along with the degree of the realization of that equality. Moreover, we
have to investigate the obstacles which form the gap between legal status
and actual status in order to set a strategy to overcome them. Then actual
equality can be achieved on the ground of such analysis and investigation.

Quite a few States that had adopted positive measures consider the present
disadvantages to women caused by discrimination as obstacles to the
achievement of legal equality. Accordingly, they have taken temporary
appropriate measures to eliminate the obstacles in order to reduce the
inequality between men and women and consequently to achieve actual
equality between both sexes.

The appropriate measures based on this necessity are regarded as temporary
measures required for the implementation of the positive measures adopted
by each State and/or international organizations and for the achievement of
equal rights between both sexes.

2. The Basis of the UN Convention on the Elimination of Discrimination
against Women

The international efforts for the elimination of discrimination, in fact,
started from the field of employment through ensuring effective
implementation of the law and allowing equal opportunity to both sexes.

We can find examples in the ILO Convention on Equal Wages of Men and Women
Workers for Equal Value Labor in 1951(No. 100) and the ILO Convention on
Discrimination and Job in 1958 (NO. 111).

Particularly, European Community enacted A Guideline on the Equal
Conditions for Men and Women(Note : Richt Linie 76/207, AB1.L.39V.14.2.
1976) regarding employment, vocational training, promotion, and working
conditions in February, 1976. According to Article 2 Clause 4 of this
Guideline, “The States parties of EC have a duty to adopt positive
measures for implementation of this Guideline.” Therefore, it encouraged
each European State to take its positive measure(Note : Heide M.
Pfarr(1988), Quoten und Grundgestz, S.121ff;Christine Langenfeld(1990), Die
Gleichbehandlung von Mann und Frau in Europ ischen Gemeinshaftsrecht, Nomos
Velaggesellschaft Baden-Baden, S.140.).

It is the UN Convention on the Elimination of Discrimination against Women
in which positive measures are prescribed in every field including
employment.

In Article 4 Clause 1, this Convention prescribes, “Adoption by States
Parties of temporary special measures aimed at accelerating de facto
equality between men and women shall not be considered discrimination as
defined in the present Convention,” and “These measures shall be
discontinued when the objectives of equality of opportunity and treatment
have achieved.” In other words, it clearly manifests the temporariness of
the positive measures as special measures. However, each State Party has
freedom to choose the measures appropriate to itself.

The basic ideas of the Convention are reflected to the following
provisions : e.g., “States Parties condemn discrimination against women in
all its forms, agree to pursue by all appropriate means and without delay a
policy of eliminating discrimination against women”(Article 2) ;
particularly, “To take all appropriate measures to eliminate
discrimination against women by any person, organization or
enterprise”(Article 2 Clause(e)); and “States Parties shall take in all
fields, in particular in the political, social, economic and cultural
fields, all appropriate measures, including legislation, to ensure the full
development and advancement of women, for the purpose of guaranteeing them
exercise and enjoyment of human rights and fundamental freedoms on a basis
of equality with men.”(Article 3)

Also, the Convention puts emphasis on positive measures to be adopted by
the States Parties in such provisions dealing with the obligations of the
State for achieving equality between men and women as Article 5 Clause
(a)-“States parties shall take all appropriate measures : (a) To modify
the social and cultural patterns of conduct of men and women, with a view
to achieving the elimination of prejudices and customary and all other
practices which are based on the idea of the inferiority or the superiority
of either of the sexes or on stereotyped roles for men and women,” and
Article 6 to 16 (except Article 14) in which realization of equality in the
personal sphere of life is manifested-“States Parties shall take all
appropriate measures, including legislation.”

The United Nations, through this Convention, puts its efforts in
realization of actural equality behind the belief in women's ability for
full self-development against the idea of stereotyped roles for men and
women. It also allows temporary positive measures until the time when
actual equality can be achieved, because special measures are unavoidably
required for realization of actual equality.

As a result, noticing the fact that a number of States parties have
introduced special measures to accelerate the realization of actual
equality for complete implementation of the Convention because actual
equality between men and women has not been achieved although the States
Parties have made great progress in the repeal or amendment of
discriminative laws on the basis of State reports of several States
Parties, UN Committee on the Elimination of Discrimination Against Women
adopted the General Recommendations on this subject at the 7th meeting of
the Committee for the consideration of State reports in 1989(Note : General
Recommendations 5(Temporary Special Measures), A/43/38;Refer to KWDI(1993),
p. 203; with regard to this, the UN commission on the Status of Women, at
the 36th meeting of the Commission held in 1992, with the recommendations
by the meeting on ‘Elimination of legal and actual discrimination against
women,’ which was the primary project on equality, recommended that all
the States Parties have to consider adoption of effective positive measures
taken by other States(UN(1992), E/7CN/6/1992/7/No9).).

This General Recommendations recommends that all States Parties “more
often use temporary special measures like positive measures, priority
treatment, or the quota system for improving women's participation in the
fields of education, economy, politics, and employment” in order to
accelerate realization of actual equality between men and women, on the
basis of Article 4 Clause 1 of the Convention.

3. Legal Basis of National Law on Positive Measures of Each State Party

It is very effective for activation of positive measures that the
Government of each State officially announces the promise of implementation
of the policy to ensure equal opportunity in order to reduce the gap
between legal and actual equality.

Although the States parties adopt positive measures based on Article 4
Clause 1 of the UN Convention on the Elimination of Discrimination Against
Women which has the effect of universal international law, that is a way to
legislatively show the legal problems related to the positive measures,
which may cause constitutional problems of counter-discrimination against
men because of the difference between national and international laws.

Moreover, Article 2 of this Convention demands all the States Parties to
prescribe the principle of equality between men and women in the
constitution or the other related legislation, if not prescribed yet, and
to guarantee the actual practice of this principle by means of legislation
or other appropriate measures.

Particularly in the field of employment, even before the enactment of the
UN Convention on the Elimination of Discrimination against Women, the
regulations related to equality between men and women have existed on the
basis of the guideline 76/207 of the Council of Europe in 1976, which
prescribes the provision that the special measures adopted by EC member
States to eliminate the unequal practices existing in reality against
women's opportunity shall not be applied to the case of prohibition of
discrimination. In the first, the second, and the third middle and long
term projects on women planned by the EC ministerial meeting, among EC
member nations there have been developed several kinds of appropriate
measures, such as positive measures to support women's equal opportunity
and elimination of inequality in every sector of society, and imposing on
every State the obligation to increase women's opportunity for
participation in politics and the decision-making process.

The basis of the national laws of each State on positive measures are very
diverse. Some States acknowledge the positive measures in every field of
social life in their constitutions(Greece, Sweden, and Austria) or general
laws(Iceland, Norway, Denmark, and Finland), and other States the
legitimacy of the positive measures in the field of employment only in the
special laws related to emplyment. Also, some other States do not have
related provisions in laws or legislation, but public organizations or
local self-governments sometimes adopt a decision or an index to implement
programs for positive measures(Note : Refer to op. cit., p. 36 for
details.).

4. The Concept of “Positive Measures”

The concept of “positive measures” is not unified. We can define
“positive measures” as the mesures aimed at creating new customs on the
basis of the legal systems which, presently neutral in terms of sex, will
oppose existing direct and indirect results of customary discrimination.

Because the present political, social, and economic structures were built
in the times when discrimination existed, without temporary measures to
change these structures it would be difficult to achieve important social
goals such as democracy, freedom of choice, and social justice, with which
actual equality can be realized. Therefore, in order to adopt such positive
measures, it has to be proved that the discrimination affects the practice
of women's rights, and that the proposed positive measures can correct the
present negative influences(Note : UN(1992), E/CN. 6/1992/7/NO.34.)

The EC Commission on Equality between Men and Women in 1979 defined
positive action as “the program devised to achieve actual equality in
opportunity through the measures to alleviate or correct the discrimination
originated from social system or custom.”(Note : Andre Michel(1986),
“Positive Action for the Benefit of Women-Preliminary Study,” Document
EC(86) 1, p.4).

Accordingly, the adopting of positive measures is the process of
correcting the results of past discrimination and supplementing the special
demands of discriminated groups. Special efforts are required to integrate
women into the fields from which they had been excluded previously in many
areas of social life.

Since all the States acknowledge non-discrimination as the primary goal,
the will to form the conditions for change as a supplementary measure and
positive action as a strategy for change shall be justified as the means to
accelerate equality.

The terms used in the UN Convention, the related recommendations, and by
the other States parties are positive action, speical measures, appropriate
measures, priority treatment, quota system, and attainment of target. In
this article, we will use ‘positive action’as the most comprehensive
concept.

In other words, positive action aims at : ① eliminating discrimination
and then accelerating equality, ②controlling the present obstacles, due to
the existing discrimination, to women's practicing their rights, and
③reforming the present social, political, and economic structure in order
to get rid of the influence caused by the existing discrimination, and
④temporary measures taken until the time when the influences caused by
discrimination disappear(Note : Refer to UN(1992), op, cit., No. 37).

5. Major Positive Actions

A. Importance of Elimination of Discrimination against Women in Public
Sector

As reviewed earlier in this article, for implementation of the UN
Convention on the Elimination of Discrimination against Women, the States
Parties shall have the obligation to try to promote equality by means of
the repeal of discriminatory laws and the elimination of the obstacles
against realization of actual equality, the abolition of prejudices and
customary and all other practices which are based on the idea of the
inferiority or the superiority of either of the sexes, and positive
actions.

In order to have fruitful results from these measures, the roots of
discrimination ought to be corrected. These roots are supported by such
conventional factors as the customary sex-role in each family, traditional
culture, religion, and the interpretation of norms. Such factors as
traditional behavior in the society, stereotyped sex role, traditions, and
customs contain deep resistance against the change needed for complete
prohibition of discriminatory customs against women. These obstacles are
deeply planted in the consciousness of individuals and, as the root of
discrimination, affect every one of us in private life. However, the
consciousness of individuals can effectively be changed by means of the
change in the structure of economic and public life, which can influence
the individual role in private fields.

Also, in order to get good results from these measures, it is necessary to
implement them with enough information on legal rights in the context of
political relations. For this, the conditions must be present in which
women can participate in the political and public fields, particularly in
the policy-making process.

In order to enable such conditions, we can assume that women's general
status must be improved, and that political, structural, economic, and
social problems should be solved. However, there is an increasing thoughts
that, for this change, discrimination against women in political and public
activities should be eliminated first so that women can exert their
influence in solving political and structural factors and economic and
social problems. In this way, eventually the conditions to improve women's
status can be formed by the political, structural, economic, and social
change owing to women's participation.

With regard to the state of women's participation in the public field,
there are differences in the degree of women's participation, and the rate
of women's participation is commonly low despite the cultural, ideological,
and economic gaps among the States in the world. Under such a common
thought, now the importance and joint strategy of this subject is
processing worldwide.

The issue of discrimination in the public field becomes the problem of how
women can participate more extensively and equally in public life and the
policy-making process.

The UN, for the realization of a society toward the year 2000 in which men
and women can commonly participate, adopts, as the 1990's strategic
project, the policy of equal participation in public activities including
politics and emphasizes the development of effective measures in every
area. Under the UN's support, appropriate measures related to equality have
been developed in quite a number of States. Aware of the importance of the
elimination of discrimination against women in public sectors, the UN
Convention on the Elimination of Discrimination against Women(Note : Refer
to Article 7 & 8 of this Convention.), the NFLS(Note : Refer to the
Paragraphs of this Strategy : 32, 79, 84, 87∼89, 91∼92, 267, 315, and
356.), the UN Commission on the Status of Women(Note : The UN Commission on
the Status of Women put the priority on such topics as : “Equal
Participation in Political and Decision-making Process” in theme of
equality at the 34th session(1990);“State and Regional National
Machineries to Effectively Integrate Women in the Development Process” in
the theme of equality at the 35th session(1992);“Legal and Actual
Elimination of Discrimination” in the field of equality and “Equal
Participation in All Kinds of Efforts for International Cooperation, Peace,
and Disarmament” in the field of peace at the 36th session(1992), and the
Commission will focus on the topics like : “Equality in the
Decision-making Process on Economy” in the field of equality and “Women
in Peace and the International Decision-making Process” in the theme of
peace at the 39th meeting in 1995.) and the UN Committee on the Elimination
of Discrimination against Women(Note : Refer to General Recommendation
5(temporary special measures), 6(effective national machinery and publicity
activity) and 8(concerning the implementation of Articl 8 of the
convention)) all stress the improtance of positive actions for elimination
of discrimination against women in the public sector.

In the rest of this article, we will summarize various kinds of positive
actions aimed at the elimination of discrimination against women in the
public sector, which have been dopted by the states Parties of the UN
Convention of the elimination of Discrimination against Women. These
positive actions will largely be classified into the categories of
legislative measures, the establishment of state organizations and the
measures to strengthen their function, measures to support women's
participation in politics and decision-making position, and measures to
help equal employment in the public sector(Note : Refer to KWDI(1993),
p.48.).

B. Legislative Measures(Note : Ibid., pp. 50∼81)

Article 23 of the Convention prescribes that nothing in this convention
shall affect any provisions that are more conducive to the achievement of
equality between men and women may be contained :

(a) In the legislation of a State Party ; or
(b) In any other international convention, treaty or agreement in force
for that State, and Article 24 demands the obligation of States Parties to
undertake to adopt all necessary measures at the national level aimed at
achieving the full realization of the rights recognized in the Convention.

Because the legal effect of this convention within every State is
different, in some States the Convention has legal effect as a national law
as soon as it is enacted, and in some other States it will become a part of
the State obligation for the international treaty, the effect of which is
weaker than national law. Accordingly, many States parties have enacted the
Convention as a national law after they have ratified the Convention. These
kinds of measures are very Convention, contain concrete measures for
realizing the purport of the Convention, and provide the legal basis for
establishing the organization to ensure its practice and the legal-aid
devices.

Some States like Norway, Denmark, Australia, and Finland established
comprehensive legislation on Equality between men and women in every field.
This legislation is the expression of the political will of those States to
realize the purport of the Convention as a national law. The various
measures adopted on the basis of this legislation are being implemented
effectively.

For example, in order to support the equal employment of women in the
public sector, they adopt the system of setting the target rate or the
quota system in the practice of recruitment, promotion, and vocational
education and training, set the provision on the target ratio of
representation in the political and decision-making positions, and have the
related organizations supervise the public organizations to implement the
positive measures on the elimination of discrimination against women. As a
result, they increase the effect of the legislation.

Also, there are a number of States parties that contribute to taking
positive actions by means of official announcement of the promise to
execute the policy ensuring equal opportunity in order to reduce the gap
between de jure and de facto discrimination on the basis of Article 4
Clause 1 of the Convention. The States parties which adopted such action
are the European countries centering around the EC : e.g., England, Sweden,
Austria, Denmark, France, and Italy. These States manifest it in their laws
related to employment.

Accordingly, the positive actions, which mean the will and the strategy
for change to form the conditions for social change as supplementary
devices to achieve the future goal, the realization of equality, are not
considered, in the present situation of women, as discrimination, but
justified as devices accelerating equality. Also, the positive actions are
conducive to activating positive steps not only in the field of employment
but also in other fields.

C. Establishment of National Machineries and Actions of Strengthening
Their Function(Note : Ibid., pp. 81∼124)

A number of States have established national machineries for improvement
of the status of women during the period of the UN Decade for women. It is
essential to establish such national machineries for implementation on the
UN Convention on the Elimination of Discrimination against Women because
along with legislative measures, national machineries which have actual
authority and power for execution can establish, support, and develop a
policy on the elimination of discrimination against women and also
supervise implementation of the established policy.

Therefore, for more effective implementation of the Convention the UN
Committee on the Elimination of Discrimination against Women recommended
that the States Parties establish a high-ranking organization that can give
advice on the possible influence and effect of all the policies upon women,
monitor the actual conditions of women, plan policies for the elimination
of discrimination, and have financial resources, responsibility, and power
to carry out effective measures for the established policies. Also, the
Committee urged that the States parties strengthen the function of national
machineries.

There are various forms and functions of the national machineries. In some
cases, a department of the Ministry of Labor or Social Affairs takes
charges of this task, and in some other cases an independent Ministry or
Department of Women's Affairs is established. On the other hand, some
States Parties set the only committees or ombudsman.

Such national machineries take legal and practical actions required for
implementation of the Convention, teach women their rights, make programs
for improving public understanding, and provide institutional and financial
aid for women to enjoy opportunities for education and training appropriate
to women themselves.

Although effective operation of the national machineries requires the
absolute necessity of government support, financial resources, authority,
and personnel, most States parties are not equipped with these prerequisite
conditions in reality. Therefore, on the basis of past experience, some of
the States parties such as Greece, Austria, Thailand, Germany, and Poland
tend to promote the rank of the national machinery and to strengthen its
function.

In cases of the national machineries relatively successful in their
function, they are equipped with a high level of government support,
financial resources, authority, personnel, and the power of information
mobilization and direct channels to the decision-makers. In terms of
activity, the successful organizations are conspicuous in their political
activities, have close relations with private organizations and the groups
of ordinary women in the general public, and use formal and/or informal
networks in the formal and/or informal sector(Note : United Nations(Oct.
18, 1990), A/45/489, No. 33.).

With regard to implementation of the Convention, in particular, the
national machineries play an important role in the tasks as follows :
supervising the state of implementing the Convention ; controlling the
policies of interrelated department ; publicizing and distributing the
Convention ; accelerating the policy for equality ; monitoring the status
of women as a whole ; and studying the causes of discrimination and
effectively and institutionally seeking for the strategy and policy for
elimination of the discovered causes of discrimination(Note : UN(1990),
CS/CEDAW/1990, WP. 4.).

What is most important is that, directly implementing positive measure
adopted by the state, recommending and supporting their implementation, or
giving advice on it, these national machineries put into action the
positive measures of the State for the elimination of discrimination
against women in every filed. Also, States Parties like Japan and
Australia, have adopted Nairobi forward-looking Strategies as the State
Code of Conduct, monitoring and urging implementation of its provisions.

D. Measures for Participation of Women in Politics and Decision-making
Positions(Note : KWDI(1993), pp. 124∼143.)

Despite considerable efforts in the past, it is in politics and
policy-making fields that the greatest gap between legal and de facto
equality appears in all the States in the world.

Under the common recognition that, despite the cultural, ideological,
economic, and social differences of all the nations in the world, the rates
of participation of women in politics and decision-making positions are
still commonly very low with a little difference in the degree, all the
States Parties are seeking for a common strategy regarding equal
participation of women in politics and policy-making positions as the
priority task in the 1990's.

The strategy of equality in these fields focuses on increasing the number
of women in the Parliament and higher level of the decision-making
positions and at the same time eliminating the stereotyped idea on the role
of women and improving the overall status of women by the participation of
women in politics and policy-making positions. Also, it stress the
possibility that active participation of women in politics and
policy-making positions will allow special demands and interests of women
to be taken into consideration and bring social and structural change that
is the basis of equality between men and women.

Therefore, recognizing that a number of problems in a number of nations
have resulted from the decisions arising out of the policy-making process
in which women could not participate and that equal participation of women
in politics and policy-making positions will be conducive not only to
improvement of the status of women but also to democratic development of
the society as a whole, many States Parties have adopted either positive
measures such as setting gradually increasing target rates of equal
participation of women in the legislature, political party, and
high-ranking policy-making positions or the quota system, or special
measures like reforming the election system and supporting the education of
politics for women or election related activities by women. The results of
these positive or special measures are very successful, particularly in
Scandinavian nations like Norway, Sweden, and Finland.

It can be said that equal participation of women in politics and
decision-making positions requires improvement in the general status of
women and social and political structural change before anything else.
However, it is a prerequisite to eliminate discrimination against women in
politics and decision-making positions for equal participation of women,
which can bring possible changes in political and social structure. The
changes in political and social structure can provide the conditions for
overall improvement of the status of women. Therefore, the measures for
women's participation in politics and decision-making positions are of
first priority and can become effective measures for the elimination of all
kinds of discrimination against women.

With regard to preparation for these measures, it is important to make
efforts to form the consciousness for democracy because it cannot be said
that the society that excludes women, who make up a half of the population,
from politics and policy-making process is real democracy because the
recognition that women are being deprived of important rights and duties as
civilian is required in this society.

E. Measures for Equal Employment in the Public Sector(Note : Ibid., pp.
144∼168.)

So far, many States have thrown their effort into the realization of
equality between men and women in the field of employment by enacting laws
on equal employment.

What the State can directly do toward realization of the equality of women
in the field of employment is its measures on public workers, including
women civil servants in the public sector of which the employer is the
State itself. Accordingly, the States which implement positive measures for
the elimination of discrimination against women in the field of employment
can only recommend, advise, and direct these measures to private firms, but
in the public sector the State directly carries out concrete
신고
Posted by KWWA
Half a Century of the UN Commission of the Status of Women and a Decade of Korean
kwwa  2002-10-28 15:27:10, 조회 : 403

Half a Century of the UN Commission of the Status of Women and a Decade of Korean Activities in Women's Affairs / by Whasoon Byun
/ KWDI Research Reports/Women's Studies Forum, Vol.14 /December 1998  
  
  

   
Ⅰ. BACKGROUND, CONTENTS, AND METHODS OF RESEARCH

   Since Korea participated as an  observer in the 1986 session  of the United
Nations Commission on the Status of Women,  it has for a decade remarkably
developed its activities for women in international society.  It was elected as a
member state of the UN  on April 29, 1993, and  started acting from the next
year as a member state.  Korea participated actively at  the governmental and
nongovernmental levels at the  Fourth World Conference  on Women. In  1996,
Kim Yong-Jung was elected as a member of the United Nations Committee to
Eliminate Discrimination Against Women.  In 1997, Korea  was reelected as  a
member state.
   It was  after the  Second  World Conference  for Women   in Copenhagen,
Denmark, that the  United Nations  issue of  promoting the status  of women
started being dealt with  as a national policy  for women in  Korea. After the
conference, governmental and NGO-related women suggested the establishment
of national   machinery to   develop women's  policies,  and  the  government
established the   Korean Women's   Development Institute  in  1983  and  the
National Committee  to  Review Women's   Policies in  the same   year, both
directly under the  Office of  the Prime Minister.  In 1984,  the Convention to
Eliminate Discrimination Against Women  was ratified, and as  a part of such
activities, the  Korean Women's  Development  Institute formulated  the Basic
Plan for   Women's Development   and the  Guidelines  to  Eliminate  Gender
Discrimination, a  plan  which was   adopted by  the National   Committee to
Review Women's Policies in 1985.
   Such a series of events shows clearly the impact of the  United Nations on
improving the status  of women in  Korea. Especially after  the Fourth World
Conference on Women, the  Committee to Pursue  Globalization formulated the
Ten Tasks for Women's Social Participation (1995), opening the possibilities for
women's social participation.
   Now, Korea is expected to consolidate its  basis for activities as a member
state of the United Nations Commission on the Status of Women as  a part of
the implementation of  the policies to  promote Globalization, and  to fulfill  an
active role as a center of the Asia Pacific region. In this paper, we will review
the 50 years'  activities of the  United Nations  Commission on the  Status of
Women, as well as Korean women's policies and women's movements, in order
to seek the direction of the Korean women's movement in connection with the
international women's movement.
   This study dealt  with the  United Nations  Commission on  the Status  of
Women,  the  International  Women's  Non-Governmental   Organizations, the
UN-related activities of the Korean government and NGOs. The period covered
was the 52 years between  1945 and 1997 for the  United Nations Commission
on the Status of Women, and between 1986 and 1997 for Korean activities.
   The research method was  mainly a literature review,  involving organizing
and analyzing  the  materials published  by  governments and  NGOs.  As to
Korean women's policies,  we reviewed how  Korea responded to  international
trends while developing a linkage  with the Platform for  Action of the World
Conference for Women.
   The purposes of research are: firstly, to review the  50 years of the United
Nations Commission on the Status of  Women(CSW); secondly, to analyze the
resolutions of the 50 years of the United Nations Commission on the Status of
Women according to the Platform for  Action of the Beijing World Conference
on Women;   thirdly, to  review the   women-related policies  of the   Korean
government during the 10 years of participating in the CSW; fourth, to review
the activities of Korean NGOs related to the international women's NGOs; and
fifthly, to suggest the future directions for the women's movement, seeking the
active role of Korean women in international society.
   Reviewing the 50  years of the  United Nations women's  development, we
selected parts   of The  United  Nations and   the Advancement  of  Women,
1945-1996, and translated it, as it records the 50 years of the UN CSW in the
most systematic way.


Ⅱ. 50  YEARS  OF WOMEN'S   DEVELOPMENT CENTERING   AROUND      
    THE UN CSW

   The UN Commission on the Status of Women was established in 1947  and
has 50  years of  history  as of  1997. We  can  divide the  activities of   the
commission into four  periods. The  first period was  between 1945  and 1962,
when it consolidated the legal  and institutional basis for equality.  During this
period, the CSW,  assuming that  the legal  and institutional  basis should  be
established for  gender equality,   made efforts to  legislate  laws to  promote
women's rights, and  focused on  the establishment  and strengthening of  the
CSW.
   During the   second period  between  1963 and   1975, its  focus  was  on
recognizing the role of women in development.  If the CSW was successful in
establishing women's rights as legal norms during  the first period, during the
second period  consensus was  reached that  the actual  securing of  women's
equal rights  was important,   and the CSW   dealt with women's   efforts to
mainstream women in development. An important  point here is that the CSW
proclaimed the  International  Women's Year   and expanded a   movement to
promote the status of women  globally, to eliminate gender  discrimination and
to arouse the international public concern for women's rights.
   During the   third period   between 1976  and  1985,  the  United  Nations
proclaimed the United Nations  Decade for Women  for Equality, Development,
and Peace. During the United Nations Decade for Women,  it held international
conferences in  Copenhagen  (1980) and   Nairobi (1985).  The Convention   to
Eliminate Discrimination Against Women was adopted in 1979 to be ratified by
many countries.
   During the fourth period between 1986 and  1996, the CSW made continued
efforts for women's equality,  development, and peace. Especially  in the peace
issue area, it showed concerns for violence against women. As a special officer
to report  on human   rights was appointed  by  the Commission  on  Human
Rights, special  concerns have  been  exerted on  the issue  of  forced sexual
slavery by  the Japanese  military during  the World  War II,  and the  CSW
mobilized international public opinion centering around violence against women.
At the  Fourth World  Conference  on Women,  deep interest  was  expressed
concerning the discrimination against female children and their human rights.


1. The First Period: Consolidate  a Legal and Institutional Basis  for Equality,  
    1945-1962

   At the founding conference of  the United Nations held in  London in 1946,
women's rights became for the first time since World War II one of the major
international issues. Mrs. Eleanor Roosevelt, who was  American representative
to the United  Nations, made a  speech entitled  “To All the  Women of the
World,” where she said “This new  opportunity for peace is a victory  made
jointly by  men and  women through  which they  realized the  common goal
toward freedom, breaking down  the obstacles of race,  ideology and gender.”
She argued that “women should  carry out the central role  in building peace
toward a democratic society.”
   The ECOSOC, which is responsible  for promoting human rights as  one of
six major  organizations of  the UN,  established the  Commission on  Human
Rights  in   February,  1946,   and  decided   to  establish   an  independent
sub-commission within the  Commission on  Human Rights  to deal  with the
status of  women.  The major  task  of this   sub-commission was to   make
recommendations regarding the status of women and  to submit reports to the
Commission on Human Rights.
   However, issues were raised  concerning the fact that  the sub-commission
belonged to the Commission on Human Rights, because this would prevent the
United Nations from performing roles in promoting the status  of women. Mrs.
Bodil Begtrup of Denmark, who was the chairperson, at the second  conference
held in April 1946, strongly argued that it would be difficult to expect progress
in  women's  development  if  the  sub-commission  belonged   to the   other
commission, and  suggested that   there should be   a completely independent
commission equal to the Commission on Human Rights.
   In June, 1946, ECOSOC decided on the establishment of the United Nations
Commission on the Status of  Women. The CSW had  its founding conference
in Lake Success, New York, between February 10-25. Its roles were: firstly, to
make and   submit reports   and recommendations  to  ECOSOC  to  promote
women's rights in politics, economics, society,  and education, and secondly, to
make reports on urgent  problems that require  urgent concern in the  field of
women's  rights.  The  commission  monitors  the  internationally   recognized
measures for   women's development  defined as   equality, development,  and
peace, and reviews  and evaluates  development at  the national,  regional and
global levels.
   The commission, through a declaration in 1947 that  “freedom and equality
are essential for human development,” proclaimed that “women  should share
with men freedom and equality.” The commission also declared that “women
can carry out  the central  role in  establishing free, healthy,  prosperous, and
moral society, and carry out responsibilities as free and responsible members.”
   At the  first  session in   1947, the  CSW requested   ECOSOC that  each
government cooperate   with the   annual survey   on the   legal status   and
treatment of  women. The  responses  provided abundant  information on  the
status of   women all  over the   world. According  to  this report   made in
December 1947, among the  74 nations which  responded, 25 countries did  not
recognize complete women's  political rights  including women's  voting rights
and the right to maintain the status as public servants. In the countries where
access to educational opportunities is denied, such practices were mostly based
on custom and religion but not on  laws. The report also gives clear evidence
that women's illiteracy is much more widespread than men's. And in 1949 and
1950, the result of surveying  60 countries of the  world shows that there  are
many conflicts among nations in relation to the nationality of married women.
   On March 10, 1948, the ECOSOC recognized  the principle of equal pay for
equal work,   and demanded  that  all  the member   states to  implement  it
regardless of nationality, race, language, and religion. As  a follow up, in 1951,
in response   to the   recommendation by  the  CSW,  the ILO   adopted the
Convention on Equal Remuneration which  provides the basis for  the principle
of equal pay for equal work. UNESCO and the CSW pursued the  joint project
for the program development through which people can receive basic education
regardless of  gender,  race, or  ideologies.  The Convention  on  the Political
Rights of  Women adopted   by the General  Assembly  in 1952  is the   first
international law  which has  the aim  of protecting  and promoting   women's
political rights worldwide.
   Discrimination  against  women   became more   clear  as  the   laws on
nationality, residence, marriage, and  divorce were exposed. In  1955, the CSW
submitted the Convention on the Nationality of Married Women to the General
Assembly. Its focus was that  “a woman has the  right to maintain her own
nationality if she wants although it might differ from that of the husband.”
   Furthermore, the CSW found  that the slave trade  of young girls between
11 and 13 years of age was still being carried out  in some countries. In 1956,
the General Assembly adopted the Supplementary Convention  on the Abolition
of Slavery, the Slave Trade, and Institutions and  Practices Similar to Slavery.
Its goal was to eliminate malicious practices such as slavery and trade without
the consent of women themselves.
   As a result, the Convention  and Recommendation on Consent to  Marriage,
Minimum Age for  Marriage, and  Registration of  Marriages was  formulated.
This convention  was  adopted in   November 1962 and   came into  force in
December 1964. It clarifies that there should not be any marriages without the
complete and free consent of both spouses.


2.  The  Second  Period:  Recognition  of  Women's  Role  in  Development,
     1963-1975

   The women's movement which originated mainly from  the Western Europe
and the  United States   tended to ignore  the  problems of  rural women   in
developing countries. During this period, the efforts of the United Nations were
focused on the role of women in  development, who are both beneficiaries and
at the same time a dynamic force behind change.
   The CSW set  the direction that  it should provide  technical assistance to
women in  developing countries.   At the same   time, efforts were   made to
consolidate women's legal equality based on the Declaration on the Elimination
of Discrimination against Women adopted in 1967.
   The resolution  adopted at  the General  Assembly  in 1977  requested the
formulation of the Plan of  Action for international cooperation to  promote the
status of   women. This   resolution provided   “the minimum   goal to   be
accomplished during   the second  United  Nations Decade   for Women.”  It
included the gradual  elimination of illiteracy,  the universal acceptance  of the
principle of equal pay  for equal work, the  protection of health and  maternity
including accessible family planning information,  and the increase in  women's
participation in pubic and government activities.
   The year 1972 saw  the 25th anniversary of  the founding of the  CSW. In
that year, the commission  urged the ECOSOC  and the General  Assembly to
declare 1975 as the International Women's Year. By declaring  the International
Women's Year, the  CSW intended  to emphasize  the fact  that governments,
NGOs, and individuals are making efforts to promote gender equality, and that
the role of women is important in national  and international development. The
General Assembly passed the resolution to  hold an international conference to
commemorate the   International Women's   Year, and  recommended  to  add
“peace” to  “equality” and  “development”  as women's  contribution to
enhance the efforts to consolidate world peace.
   In December  1974, the  General  Assembly adopted  the program   for the
International Women's Year, and requested that various measures be  taken for
the preparation of the conference to celebrate it to be held in Mexico City.  As
a result, on March 8, 1975,  the United Nations proclaimed “The International
Women's Day”   for the  first  time and   decided to  hold  an international
conference on women's issues.
   The First World  Conference for  Women was  held on  June 19,  1975, in
Mexico. In the opening ceremony, the Secretary General of the United  Nations
declared that the conference was the first international  effort to realize gender
equality and to eliminate gender discrimination  in education, opportunities, and
economic rights.   The representatives  of  133 countries   participated in  the
conference, among  whom 113  were women  heads of  representatives to  the
conference, and 73% of the 2000 representatives were women.
   At the closing  ceremony on  July 2,  1975, the  representatives adopted  a
World Plan  of Action.  It is  the Declaration  of Mexico  on the  Equality of
Women and   Their Contribution   to Development  and  Peace,  which  is  a
follow-up plan   for women  in  Africa and   the Asia-Pacific  region,  which
contains 35 separate resolutions and decisions.
   The Mexico Conference urges the United Nations to formulate a convention
to eliminate gender  discrimination through  effective procedures to  implement
the Plan of Action. One  of them was to develop  the 1967 Declaration on the
Elimination of Discrimination Against  Women. In order  to guarantee national
and international   activities to  promote the   status of  women, the   Mexico
Conference urged the United Nations to declare the period 1976 to 1985 as  the
United Nations Decade for Women and Development and recommended that the
second conference be held in 1980.


3. The  Third  Period: Fruits   of the  United Nations   Decade for  Women,        
    1976-1985

   Five months after the  Mexico Conference, the  General Assembly declared
the period 1976-1985 as  the United Nations  Decade for Women  for equality,
development, and peace. During the  United Nations Decade for  Women, there
were historical events and major  legal and political achievements such  as the
Convention on the Elimination of All Forms of Discrimination Against Women,
the Copenhagen Conference in 1980, and the Nairobi Conference in 1985.
   In 1975, the General  Assembly requested that  an expert group  submit to
the Secretariat the proposal to establish the International Training Institute  for
Women. The   major function  of this   institute is  to  focus on   women in
developing nations, with the purposes of enabling women to acquire new skills
and of  developing women's  information systems  through such  programs as
behavior-oriented surveys and leadership training. The Voluntary Fund for  the
United Nations Decade  for Women provides  finances, which  give direct and
practical help to women in developing countries.
   On December 18,  1979, the General  Assembly adopted the  Convention on
the Elimination of All Forms of  Discrimination Against Women with the vote
of 130   for, 0  against,  and  11 abstentions.   This convention  is  the  first
international legal instrument which defines discrimination against women. Here
gender discrimination means all  segregation, exclusion, or limitation  based on
gender which  have the   effects or the  purposes  of hindering  or nullifying
women's awareness, enjoyment  or exercise  of the  basic freedom  of gender
equality regardless of marital status in political, economic, social, cultural, civil,
or other areas.
   The Second World  Conference for Women  was held between  July 14-30,
1980, in Copenhagen, Denmark, where  145 countries participated. The  purpose
of this conference was to review the problems and  fruits that appeared in the
implementation process of the Plan of Action of the  Mexico Conference at the
mid-point of the United Nations  Decade for Women and  to newly revise the
plan.  The   documents that   were  adopted   at this   conference  are:   the
“Programme of Action for the Second Half of  the United Nations Decade for
Women: Equality, Development, and Peace” and 48 resolutions.
   The Committee to Eliminate Discrimination Against Women is based on the
Convention to Eliminate Discrimination Against Women. The General Assembly
adopted the   resolution in   1979, and   the committee   started working   on
September 3, 1981.  According to  Article 18  of the  Convention to  Eliminate
Discrimination Against Women, the  state party is expected  to write a report
within one year after ratification and also every four years depending upon the
stages they are in the implementation of the convention and the obstacles they
face.
   The Third  World  Conference on  Women  was held   in Nairobi, Kenya,
between July 15 and  26, 1985. The  conference reviewed the achievements  of
the United Nations  Decade for  Women and discussed  equality, development,
and  peace.  During   the two   week  conference,   the 372-Article   Nairobi
Forward-looking Strategies for the Advancement of Women was discussed for
the promotion of the status of women.


4. The Fourth Period: Looking Forward to  Equality, Development, and Peace,  
    1986-1996

   Since  1990,  the  United  Nations  has  included  in  a  series  of  world
conferences and  summit meetings   the measures to   promote the status   of
women in  development which   is one of   the general goals   of the United
Nations. This means that women's problems have emerged  as an international
issue. The World Summit for Children in 1990,  the United Nations Conference
on Environment and  Development in 1992,  the World  Conference on Human
Rights in 1993, the International Conference on Population  and Development in
1994, the World  Summit for  Social Development in  1995, the  Fourth World
Conference on Women in 1995, and  the United Nations Conference on Human
Settlements in 1996 dealt  with the agenda  for women. Especially since  early
1980s, the United Nations  has focused on  the elimination of violence  against
women. Expressing concerns with the status of women in  the United Nations,
it has embarked on the formulation  of a platform for action  to realize gender
equality by the end of this century.
   Women's equality begins with the promotion of the status of women within
the United Nations system.  The United Nations  was commissioned from  the
Beijing Conference to promote the status of women within the Secretariat, and
has begun the  work. At  the first resolution  in 1986,  the General Assembly
requested the  Secretariat,  heads of  expert  organizations, and   other United
Nations agencies to formulate the five-year  plan to increase the proportion of
women in   the professional  and decision   making posts  within the   United
Nations system. At the General Assembly in  1990, it decided on the quota  of
women in professional occupations, and had to  recruit at least 30% women in
each post  of the   Secretariat by the   end of that   year according to   local
considerations. As a result, there were 35% women in 1995, and 25% in major
managerial posts. The General Assembly requested the Secretariat to develop a
guideline for action  for women's  development within  the Secretariat  and to
make a  report on  the obstacles  to the  promotion of  the status  of women
within the United Nations based on a comprehensive evaluation and analysis.
   In August 1992, after several  years of study, a  study group from various
sectors of  the UN  CSW completed  the draft   of a declaration  on violence
against women  for  the first   time. The  Declaration to   Eliminate Violence
Against Women was adopted at the General  Assembly on December 20, 1993.
In March 1994, the  campaign against violence entered  a new stage  with the
intervention by the  United Nations.  During this  period, the  Commission on
Human Rights welcomed  the Declaration on  Elimination of  Violence Against
Women adopted  by  the General   Assembly, and  suggested that  a  Special
Rapporteur be   appointed to  collect  the most   comprehensive material  and
recommend legislation  suited for   national, local, and  international  levels to
eliminate violence against women.
   On November  1994, the  Special Rapporteur  submitted a  basic report  on
women's  abuse  to  the  Commission  of   Human Rights.   The Rapporteur
suggested the legislation of selective agreement which contains provisions  that
allow the victims of violence the individual rights to appeal when the measures
at the governmental level are not  effective. “This will confirm that,  in order
to guarantee the rights of the victims of  violence, they will have the ultimate
rights to  demand compensation  under  the international  human rights   legal
instruments.” The recommendation was adopted by the UN CSW in 1995.
   In 1995, when the General Assembly passed the first resolution on girls, the
violence against children  and especially girls  was the special  concern of the
General Assembly. It was a serious area of concern  of the Beijing Conference
to bring to the light  discrimination against girls and violation  of their human
rights. The General Assembly requested member states to eliminate a series of
discriminatory factors including negative cultural attitudes and practices against
girls.
   The Fourth  World Conference  on Women  was  held in  Beijing in  1995
between September 4 and 15, which was the  period to commemorate the 50th
anniversary of  the  United Nations.  It  decided that  the  global agenda  for
women's development should  continue into  the 21st  century and  after. The
Beijing Declaration and  the Platform for  action adopted  unanimously by 189
countries declared that nations guarantee de facto and de jure equality  of men
and women. Political consensus was reached on the 12 areas of special concern
for the  future 5  years of   international implementation of  the Platform   for
Action. It was the largest international conference  on women, including 47,000
persons  participating  in   the governmental   conference  and   30,000 NGO
representatives participated  in the  NGO Forum  in Huairous  (located in  the
suburbs 65 km away from Beijing).
   The 189 governments  that participated in  the Beijing  Conference adopted
the Beijing Declaration and  12 Platform for  Action unanimously. The  United
Nations has  performed an  important role  in the  international movement   to
promote gender equality, and behind  the United Nations were  the NGOs that
actively exerted influence. Since  the First World  Conference on Women  was
organized in Mexico  City, the  NGO Forum as  a parallel  event has  been a
major part of all the United Nations conferences on women. Ten years later in
Nairobi, the number of NGO participants reached  15,000, and in Beijing 30,000
NGO representatives participated in the forum.


Ⅲ. ANALYSIS  OF THE  RESOLUTIONS OF  THE UN  CSW BASED  ON
    THE BEIJING PLATFORM FOR ACTION

   A total of  298 resolutions  are in  the Resolutions  of the  United Nations
Commission on the Status of Women,  which are the Draft Resolutions  of the
CSW and   Resolutions of   the ECOSOC.   The most   proper standard   for
classifying the resolutions is  the 12 areas of  special concern of the  Platform
for Action  adopted  at the   Fourth World  Conference on  Women.  This is
because  these  are  the  areas  that  require  special  concern  for  women's
development, and each area  is considered as a  strategic target for promoting
the status of women in the world.

[Table 1]  Distribution of  UN CSW  Resolutions by  Periods and   by 12
          Areas of Concern
-------------------+----------+----------+-----------+----------+----------
             Period|  First   |  Second  |   Third   |  Fourth  |  Total
Areas              |          |          |           |          |
-------------------+----------+----------+-----------+----------+----------
Poverty            |          |     1    |           |     4    |     5
Education/Training |     6    |     4    |           |     1    |    11
Health             |          |     2    |     3     |     6    |    11
Violence           |          |          |     3     |    15    |    18
Peace/Unification  |          |          |     3     |    22    |    25
Economy            |    10    |     9    |     2     |    14    |    35
Politics           |     9    |     2    |           |     3    |    14
National Machinery |     3    |     3    |           |    10    |    16
Human Rights       |     6    |     7    |    10     |    19    |    42
Media              |     2    |          |     3     |     5    |    10
Environment        |          |          |           |     2    |     2
Girls/Family       |     1    |     6    |     6     |    10    |    20
CSW                |     6    |    12    |    21     |    50    |    89
-------------------+----------+----------+-----------+----------+----------
Total              |    43    |    46    |    48     |   161    |   298    
-------------------+----------+----------+-----------+----------+----------


   According to Table 1, during the  past 50 years, the number of  resolutions
related to poverty is 5, education and training 11, health 11, violence 18,  peace
and unification  25, economy  35,  politics 14,  national machinery   16, human
rights 42, mass media  10, environment 2,  girls and family  20, and CSW 89.
This shows that  the resolutions of  the CSW are  focused very much  on its
own projects.  Among  the 12   themes of the   Beijing Platform  for Action,
continued attention  was paid  throughout the  four periods  to  the issues  of
human rights, girls and family, economy, national machinery, and politics.
   During the first period  between 1945-1962, a  total of 43  resolutions were
adopted, and  the major  areas  of concern  were economy   (10), politics (9),
education and training (6),  and human rights  (6). Besides the  resolutions on
CSW (6), national machinery (3), media (2), and girls and family (1) were also
adopted. Since  it was  the period   where the efforts  were made  mainly  to
consolidate the legal  and institutional basis  of women's rights  and concerns,
interest was  concentrated on  economy, politics,   and education and  training
areas. It is to be  noted that the concerns  with the media were  connected to
the adoption of resolutions.
   During the second period between  1963-1975, the major goal was  to draw
attention to   the role  of women   in development.  Among the   total of  46
resolutions, major interest was  expressed on economy  (9), human rights  (7),
girls and family (6), and CSW projects (12). Resolutions were also  adopted on
education and training (4), national  machinery (3), politics (2), health  (2), and
poverty (1). During the  first period, economy  and human rights  issues were
dealt with as major issues, while relatively lower interest was paid to political
issues. It is a positive phenomenon that health and poverty issues are drawing
attention.
   During the third period between  1976-1985, the United Nations Decade  for
Women was planned  and evaluated.  Among the  total of 48  resolutions, the
highest concerns were  shown on  CSW (21)  and human  rights (10),  and 3
resolutions were adopted on each of health, violence, peace and unification, the
media, and girls  and family.  During this  period, the  economy issues which
occupied a major place during the first and the second periods were reduced to
two, and no resolution  was adopted on politics  and national machinery.  This
can be interpreted as a result of the  tasks of CSW becoming the major issue
of controversy  in the  process  of implementing  the projects   of the United
Nations Decade  for Women  after “The  International Year  of Women”  in
1975. However, positive evaluation can be made of the fact that concerns  with
human rights   still continue,  and  new concerns   are expressed  on  health,
violence, and peace and unification.
   During the fourth  period between 1986-1996,  active efforts were  made to
move toward equality, development, and peace. During the  short 10 years, 161
resolutions were  submitted, showing  the busy  activities of  the CSW.  It is
emphasized that the  efforts of  the UN  CSW (5)  to promote  the status  of
women should  precede  women's efforts  toward  equality. There  were  also
activities toward   peace, and  to  be noted   are the  efforts  for peace   and
unification (22),  human rights  (19), and  elimination of  violence (15).  There
were also efforts  to promote  the empowerment of  women in  economy (14),
national machinery (10), and girls and  family (10). Besides, the resolutions on
health (6), media (5), poverty (4), politics (3), and environment (2) are drawing
international attention. To  be noted  during this  period is  the fact  that the
issues of economy  and human rights  have emerged as  core concerns which
have been the  major areas  of concern  since the first  period; secondly  that
there were a remarkable  number of resolutions  on peace and  unification and
the elimination of violence; thirdly that the  concerns on girls and family have
increased; fourthly that there is a continued interest in poverty, health, and the
mass media; and fifthly, the environment issue has newly emerged.


Ⅳ.   CSW   AND  THE   WOMEN’S   POLICIES   OF  THE   KOREAN                
     GOVERNMENT


   The representatives of the Korean government  have participated in four of
the World Conferences on Women and all the sessions beginning from the 31st
session up to the current one of the 41st UN CSW meetings.
   Analyzing the characteristics of  Korean women's policies according  to the
periods of United Nations  activities for women's  development, it was  during
the third period (1976-85) that  Korean women's policies started providing  the
basis for promoting the  status of Korean women  according to the  results of
the United Nations  Decade for  Women. The  Korean Women's  Development
Institute was founded  in 1983,  the National Committee  to Review  Women's
Policies was   established in  1983,  and the   basic materials  were  collected
through basic surveys and research,  core policy tasks were selected,  concrete
development   measures   and  alternatives   were   suggested,   and   model
implementation of the various kinds of development directions was provided. In
fact, Korea implemented the  improvement of the national  machineries, ratified
the United  Nations Convention  to Eliminate  Discrimination Against  Women
(1984), and formulated the Basic Plan for Women's Development (1985).
   During the fourth  period (1986-1996),  the basis  for gender  equality was
prepared through the formulation  of the long-term  plan for women's policies
and the legislation and revision of women-related laws. The  Women's Section
was included in the National Long-Term  Development Plan Toward the Year
2000 (1986),   the Mother  and  Child  Health Act   was revised   (1986), the
Women's Section was  included in  the 6th  5-year Social  Development Plan
(1987), Guidelines to Eliminate Gender Discrimination were provided (1987), and
the Basic   Plan for  Women's  Development  (1987)  was established.   More
systematic women's policies  than ever before  were formulated. Especially  in
1987, in the constitutional  revision, an article  on gender equality in  marriage
and family life was inserted in concrete  form, and in 1987 the legal  basis for
gender  equality  was  prepared  in  various  fields  of  society  through  the
legislation of the  Equal Employment Opportunity  Act. Also, it  is remarkable
that  the  basis   for eliminating   the  limitations  on  women's   educational
opportunities was prepared by  taking step by step  measures to eliminate the
limitations on girl students entering colleges and universities.
   The characteristics   of this   period are   the integration  of  a  women's
development plan   in the   Sixth Social   and Economic   Development Plan,
participation in  various policy  planning and  decision-making processes,   and
legislation and  institutionalization. It   is to be  noted  that Korea  became a
member state of the UN.  The Ministry of Political Affairs  II was established
(1988) to prepare for  the basis for  making policies on  women's issues. The
Ministry of   Political Affairs   II carries  out  the  role  of  formulating and
coordinating  women's  policies,  and  relevant  agencies   are in   charge of
implementation and   of women's   welfare policies.  The  government  newly
established the  agencies in   charge of women's   welfare in the   Bureau of
Family Welfare in each city and province.
   As legislation  and revision,   the Family Law  was  revised in  1990,  the
Fatherless Family Welfare Act was  legislated (1989), and the  Child Care Act
was legislated  (1991).  This shows  that  policies have  been  formulated for
gender equality  in the  family and  for the  promotion of  the quality  of life
through promoting women's welfare.
   In addition, as legislation  and revision, the Act  on the Punishment of  the
Crime of Sexual  Violence and  the Protection  of the  Victims was legislated
(1993), the Act  to Assist  the Livelihood of  the Women  Forced into Sexual
Slavery by the  Japanese Military  was legislated (1993),  the Act  to Prevent
Prostitution, etc, was legislated (1994), the Equal Employment Opportunity  Act
was revised (1995), and the  Basic Act for Women's Development  (1995) was
legislated. Also, the Act  to Prevent Sexual  Violence was revised (1997),  and
the Act to Prevent Family Violence (1997) was legislated. Such legislation and
revision of laws can be  seen as a part  of the activities to provide  the basis
for equality, social participation, and promotion of welfare.
   Since  the  basis  for  gender  equality,  social  participation  and  welfare
promotion has been prepared, the social system and  practices should follow in
the future.   In concrete,   the basic  plan  for  women's policies   should be
formulated  and  implemented  according  to  the   Basic Act   for Women's
Development, and those  areas where  the women-related  laws are  separated
from social changes should be  revised. Efforts should be  made to strengthen
the function of the Ministry of Political Affairs II so that women's policies can
be implemented. Also, in the legislation and revision of laws, those parts which
are obstacles to gender  equality should be revised,  the legal basis should  be
prepared for  the punishment  of sexual  harrassment at  work, and  women's
perspective  should  be  taken  into  consideration  in  the  legal  design  for
unification.


Ⅴ. WOMEN'S   INTERNATIONAL NGO  CONFERENCES  AND  KOREA'S      
    ACTIVITIES


   The UN CSW has held international conferences of NGOs parallel with  the
governmental conferences since  the First World  Conference on  Women. The
purposes  of   NGO conferences   are:   firstly to   impact   the government
representatives in the formulation of  the Platform for Action, and  secondly to
provide a forum to develop global sisterhood and friendship through the festive
events of seminars,  workshops, and events  on women's  issues. In fact,  the
NGOs carry out very active lobbying  activities on government representatives
and have significant impact on the adoption of agenda. Governments also carry
out lobbying activities  in cooperation  with NGOs  for those  issues that  are
difficult to be raised by government  representatives. Korea has participated in
the series of such conferences since the First World Conference on Women.
   When the First World  Conference on Women  was held, the  NGO Forum
Tribune was held  at the  same time  as the  main governmental  conference.
When the second conference  was held in Copenhagen,  Denmark, in 1980, the
NGO Forum   was held   at the   same time  on  the  theme  of  "Women's
Participation in Education, Employment, and Health.” In 1985, the Third World
Conference on Women  was held in  Nairobi, Kenya, where  they adopted  the
"Nairobi Forward Looking  Strategies Toward  2000.” At the  same time  the
Third NGO Forum  was held on  the theme  of “Equality, Development,  and
Peace.” In  succession to  such large  international conferences,  in 1992   the
United Nations  Environment Development   Conference was held   in Rio De
Janeiro, Brazil, where Agenda 21 was adopted.
   In 1993, the International Conference on Human Rights was held in Vienna,
Austria, and a United Nations Special Report on Violence Against Women was
presented. In November the same year, in Manila, Philippines, the  Asia-Pacific
NGO Symposium and  a regional  preparatory meeting  in preparation for  the
World Conference on Women was held in which about 600 people participated.
   Finally the Fourth World Conference on Women was held in Beijing, China,
in 1995, and the NGO Forum was held between August 30 and September 8 in
Huairous, which is  in the  suburbs of Beijing.  At the  Beijing Conference, a
Platform of Action was adopted  which reflected the consensus of  180 nations
and the opinions of  the NGOs. In this NGO forum, 30,000  people participated,
recording the largest of such conferences. Since Korea became a member state
of the UN CSW, private organizations started participating in UN CSW, and at
the Beijing NGO Forum  they formed the Korean  NGO Committee and  many
representatives and members of women's organizations participated.
   The NGO Forum  is held  parallel with the  World Conference  on Women
sponsored by   the United   Nations, centering  around  the  organizations  in
consultative status with ECOSOC  and the organizations which  participated in
the regional preparatory meetings  or regional conferences.  This forum is  the
place where all the  concerned women of  the world gather  together to share
opinions on  equality, development,  and peace  through seminars,  discussions,
and exhibitions. For this  forum, an NGO Planning  Committee is formed,  and
regional preparatory meetings are held dividing the world into the five  regions
of Africa, Asia-Pacific, West Asia,  Latin America and Caribbean,  Europe and
North America. At  the Asia-Pacific region,  an NGO conference  was held in
Manila in  November 1993.  As a  result of   the conference, the  East Asian
Women's Forum was formed centering around Korea, China, and Japan.
   The active preparation for the '95 World Women's NGO Forum began from
March 1995. Group workshops  were held where  the theme presentations  and
discussions were  made on  the issues  to be  discussed at   the forum. Two
preparatory symposiums for the forum were held. The first was held in March
1995 under the title  “Preparatory Symposium for  the Management of Group
Workshops,” and  the  second was   held in  August 1995  with  the theme
"Review and Adoption of NGO Reports,  Korean Women's Platform for Action
and Declaration.” An expert workshop was held in May 1995, and the draft of
NGO report,  Korean women's  Platform for  Action, set  up of  the Working
Committee to formulate  the Declaration,  and a workshop  of group  presiders
were presented at the Second Preparatory Symposium (August, 1995).


Ⅵ. UN CSW AND KOREA'S TASKS


   Firstly, domestic interests should be raised with the international network in
the areas that  should be  dealt with in  the future  from the findings  of the
review of  the major  areas of  concern of  the Platform  for Action.  So far,
Korean women's policies have prepared the laws  and institutions as the basis
for gender  equality, social  participation  and welfare  promotion, and   in the
future the  quality of  the social   institutions should be  promoted and   there
should be changes in customs and  practices. In concrete, in the same  context
as the tasks of each area of the Platform for Action, a basic plan for women's
policies  based  on  the  Basic  Act  for  Women's  Development  should  be
formulated and implemented.
   Secondly, assistance   should be   provided so   that Korean   women can
participate actively  in the  United Nations  by opening  the  opportunities for
Korean women to work in the Bureau to Promote the Status of Women. While
the Korean activities in the CSW are evaluated to be very active, Korea is not
performing a core role. One of the reasons  is that there is no Korean woman
on the staff of the  Bureau to Promote the Status  of Women. Employment of
the staff of  the United  Nations is  not possible  without the  active political
support of the government, and therefore governmental assistance is essential.
   Thirdly, priority   should be   given to  an  agency  solely  in  charge  of
strengthening  networks   in  the   Asia-Pacific  region   and of   promoting
international exchanges. This is because Korea is not performing  its role very
well although   it should  carry  out a   leading role  as  the  center of   the
Asia-Pacific region.  Women experts   with language and  international  sense
should be recruited with active governmental assistance.
   Fourthly, international   networks should  be  strengthened among   Korean
NGOs and UN NGOs.  It was after the  Four

신고
Posted by KWWA
The Decade since the Enforcement of the Gender Equality Employment Act : The
kwwa  2002-10-28 15:26:24, 조회 : 404

The Decade since the Enforcement of the Gender Equality Employment Act : The Achievements and Tasks / by Elim Kim / KWDI Research Reports/Women's Studies Forum, Vol.16 / December 2000  
  
  

Elim Kim, Senior Fellow



Introduction


  The Gender Equality Employment Act (GEEA) of Korea was legislated on
December 4, 1987, and came into effect in April 1988. Its purpose is to
contribute to the improvement of the status of working women and
promotion of their welfare by securing equal opportunity and treatment
between men and women in any employment in conformity with the idea of
equality in the Constitution, protecting the maternity and developing their
vocational ability. Until now, there has been considerable development of the
institutions and policies related to working women through the revisions of
the GEEA on April 1, 1989 (1st), August 4, 1995 (2nd), and February 8,
1999 (3rd).
  However, discrimination against women in employment opportunities and
in working conditions still remains despite the legislation and the revisions
of the GEEA. To make matters worse, the disadvantages in employment due
to the recent economic crisis fell mainly on women. In light of this Korean
situation, the effectiveness and function of the GEEA is bing doubted.
  Consequently, this study will clarify the achievements and problems of the
GEEA for the last decade and will survey and analyze how the GEEA is
utilized, applied, and enforced in cases of discrimination against women at
the work places. Also, it will suggest the tasks and measures to be taken
for the GEEA to more effectively guarantee the equal employment rights of
men and women in the 21st century.



Achievements and Tasks of the Gender Equality Employment Act since
the Decade of Its Implementation


1. Achievements and Tasks in Preventing Discrimination Against Women in  
  Employment

  Discrimination against women in employment was legally prohibited for
the first time when the Constitution was promulgated on July 17, 1948.
Since then, the Labor Standard Act was legislated on May 10, 1953, which
had a provision that the employer should not discriminate against male and
female employees and imposed a penalty on the employer who violates the
provision, in an effort to realize the Constitution's principle of gender
equality in labor relations.
  However, the provision regulates discrimination abstractly and
comprehensively without defining or providing standards for discrimination,
which makes it difficult to be applied to concrete and various cases of
discrimination against women in employment at the work places. Also, this
provision has the limit of being unable to regulate the discrimination against
women at the stage of recruitment and employment. And, until the 1970s,
there had been very low social awareness of and policy concerns with equal
employment of men and women mainly due to the patriarchal culture
combined with Confucianism and due to the economic policy to accomplish
rapid growth. Therefore, although gender discriminatory customs and
practices have been prevalent in employment, there were no cases in which
an employer was given administrative or legal regulation because of
discrimination against women in employment. Thus, GEEA was legislated to
solve such problems.

A. Achievements
  1) The GEEA defined discrimination for the first time in the legislative
history of Korea upon the its second revision in 1989. The GEEA defined
discrimination as a business owner's act that discriminates against a worker
in the conditions of recruitment or work, or takes other unfavorable
measures without reasonable reason, by reason of gender, marriage, status
in family, pregnancy, etc. And upon the its 3rd revision in 1999, the concept
of indirect discrimination was  introduced by inserting the following into the
above definition: In this case, the discrimination shall also include where the
business owner sets the standards or conditions for personal affairs which
either men or women find difficult to meet.
  Therefore, the GEEA was able to regulate not only the direct
discrimination of taking unfavorable measures against a specific gender by
treating males and females differently, but also the indirect discrimination of
incurring an unfavorable result to a specific gender although it might appear
gender-neutral in its equal application to both genders.
  2) The GEEA has expanded the range of prohibited types of
discrimination upon each of its revisions, and at the present time, it has five
provisions for preventing business owners from discriminating against
women in recruitment and employment, wages, money and goods other than
wages, educational training, assignments and promotions, age limits,
retirements and dismissals.
  3) The GEEA clarified the fact that discrimination is a criminal offense by
imposing the criminal penalties on all the discriminatory actions which
violated GEEA. The number of penalties has been increased upon each
revision and the degree of the penalties has been raised.
  4) As a result of the administrative guidance and corrective measures by
the Ministry of Labor such as monitoring the gender discriminatory
employment rules and recruiting advertisements, many enterprises eliminated
the female bank clerk system, the female office clerk system and the
different pay-roll schedules by gender which were unfavorable to female
workers, and the number of discriminatory advertisements and employment
rules has been reduced.
  5) With the implementation of the GEEA, Korea was able to ratify the
basic International Agreements such as The Convention concerning Equal
Remuneration for Men and Women Workers for Work of Equal Value (No.
100), The Convention concerning Discrimination in Respect to Employment
and Occupation (No. 111) adopted by the ILO.

B. Problems and Tasks
  1) The GEEA's concept of indirect discrimination is too ambiguous to be
applied in the actual the cases of discrimination against women in
employment.
  2) The GEEA does not prohibit discrimination against women and men
but only discrimination against women. So, men have not been interested in
it and have not regarded it as an act to secure human rights.
  3) Although penalty is supposed to be imposed in the case of a violation
of the GEEA, its effect on deterring discrimination against women is not
much because the degree of penalty is too low.


2. Achievements and Tasks in Laying the Foundation for Promoting        
   Women's Employment

A. Achievements
  1) Upon its second revision in 1989, the GEEA provided the legal basis
for the temporary measure to treat women favorably for the purpose of
eliminating any existing discrimination for the first time in the legislative
history of Korea. This legislative measure has the significant meaning of
promoting de facto gender equality, based on the historical experience and
awareness that only equality in opportunity cannot effectively eliminate
gender discrimination that has been practiced structurally for a long time.
This measure especially has an important goal of eliminating gender
segregation in the labor market.
  According to this, the female employment quota system in civil servants
recruitment tests was introduced in December 1995 and the female
employment incentive system for public industries was introduced in 1995.
  2) The GEEA strengthen vocational training for women through the
establishment of female training centers, such as An-Sung Women's
Technical College and Working Women's Houses.

B. Problems and Tasks
  1) GEEA does not have a concrete provision concerning the temporary
favorable treatment measures in employment. So, the measure has not been
implemented in any private enterprises until now. In the future, in Korea as
in many other foreign countries, a business owner should make an
autonomous plan to improve the situation of unequal employment at the
workplace through consulting with the labor union or the worker's
representative. Furthermore, in order to promote the participation of women
in the male-dominant occupations, tasks, and departments, the temporary
favorable treatment of women in vocational training, employment and
promotion should be implemented. Therefore, gender segregation in the labor
market will be effectively eliminated and enterprises can maximize the
utilization of their human resources.
  2) The effects of the vocational education and employment guidance of
Working Women's Houses in 45 places nationwide are not too low compared
to their budget investment. So, their management should be evaluated and
improved.


3. Achievements and Tasks of the Measures to Support Workers with      
   Family Responsibilities

A. Achievements
  1) Before the GEEA was legislated, due to the deep-rooted stereotyped
gender role division and lack of institutional support machinery to promote
the compatibility of employment and child care, family care and domestic
chores, many working women had lost their jobs either voluntarily or
involuntarily with marriage, pregnancy, childbirth, and child care. In order to
solve such a problem, the GEEA provided the child care leave system and
the establishment of nursing facilities at the workplace for women for the
first time in the legislative history of Korea. Thereby, workers who have an
infant under one year of age can utilize the leave system for child care
within one year of birth without being unfavorably treated. Furthermore,
upon the second revision of the GEEA in 1995, the range of the beneficiaries
of the child care leave was expanded to include men. This measure was
intended to move away from the traditional gender role division and enable
both men and women to jointly participate in employment and be jointly
responsible for child care.
  2) The GEEA has had a considerable impact on introducing the child care
leave system and, family care leave system as measures to assist the family
life of the civil servants and teachers since 1995.

B. Problems and Tasks
  1) The child care leave in Korea is unpaid leave. So, not only business
owners but also workers are reluctant to utilize it. In order to solve the
problem, the loss of income during the child care leave should be
implemented through social insurance such as the Employment Insurance
Fund because the child care has a significant social function of providing
human resources for enterprises, society, and the nation.
  2) The child care leave system in Korea takes only one form in that a
worker does not work at all during the child care leave. There is no such
system as shortened/flexible employment for child care, which is available
broadly in the child care leave system of foreign countries. In order to
promote its effectiveness, the patterns of child care leave should be
diversified so that workers can choose flexible, more suitable employment
patterns.
  3) The GEEA uses terminology which is based on the premise of the
gender role division stereotype that child care is a woman's job by
prescribing the subject of child care leave as a working women or worker
who is her spouse taking her place. This terminology should be revised as
'worker.'
  4) At the present time, the family care leave system is granted only for
civil servants and teachers to take care of the parents, spouse, children, or
the parents-in-law who require long-term care due to accident or illness. It
should also be granted to general workers .
  5) In Korea, the so-called family compatible employment patterns such as
part-time employment and dispatched employment are concentrated mainly
on women not because of the voluntary choices of women but because of
involuntary factors. As a result, there is a problem of the employment
instability of women and the reinforcement of the stereotyped gender role
division rather than the positive result of expanding women's employment
opportunities.


4. Achievements and Tasks in Preventing Sexual Harrassment at Work

A. Achievements
  Sexual harassment at work has been prevalent in the decadent and
male-dominant work culture and has caused a lot of damage to women's
employment and the human resource utilization. However, there has been no
practical legal basis to regulate it. The Basic Act for Women's Development
legislated in December 1995 defined the term 'sexual harrassment' for the
first time in the legislative history of Korea and provided that the state, and
local governments and the business owners shall take appropriate measures
so as to prevent sexual harrassment so as to foster a working environment
that promotes gender equality. However, this act did not provide for the
concrete responsibilities for the prevention and redemption of sexual
harrassment nor did it provide its definition.
  1) In order to solve such a problem, upon its 3rd revision in 1999, the
GEEA defined sexual harrassment at work as 'the act of business owner,
worker, or his or her superior deteriorating the working environment by
giving disadvantage in employment or causing sexual humiliation to another
worker through sexual words or actions making use of the position within
the work or in relation to work.
  2) The GEEA imposed the responsibility on the business owner to prevent
sexual harrassment and to provide a safe working environment for workers
through providing education to prevent sexual harrassment at work and by
transferring the offender of sexual harrassment to a different section and by
taking punitive measures. If these responsibilities are not carried out, the
business owner shall be subject to administrative fine for negligence of 3
million Korean won or less.
  3) The GEEA also provides that the business owner should not take
unfavorable actions against the victims of sexual harrassment. The business
owner who violates this duty shall be subject to a criminal fine of 5 million
Korean won or less.

B. Problems and Tasks
  1) The GEEA lacks a provision for prohibiting sexual harassment and for
punishing the business owner who commits sexual harrassment at work.
  2) Compared to the Gender Discrimination Prevention and Relief Act
which was legislated on February 8, 1999, and applies to public institutions
and employers in employment, education, provision and utilization of goods,
facilities, services, etc., enforcement of laws and policies, GEEA's method of
dealing and restraining sexual harrassment is more restrict. And the two
acts are different in their definitions of the concept of sexual harrassment.
Due to this, confusion in their implementation can occur, there is a need for
its clear regulation.


5. Achievements and Tasks in the Development of Women's Labor          
   Administration

A. Achievements
  1) The GEEA systematizes the women's labor policy by letting the
Working Women's Welfare Basic Plan be established every five years since
1994 (First : 1994-1997, Second : 1998-2002).
  2) Since the enforcement of the GEEA, administrative agencies related to
working women have been continuously expanding. At the present time,
these include the Bureau of Working Women with the two departments of
Working Women's Policies and Women's Employment Assist in the
Ministry of Labor. In addition, the departments of working women operate in
6 local bureaux of labor, and 46 local labor offices operate windows to
receive reports of discrimination against women in employment.
  3) The Month of Equal Employment Events has been held every October
since 1995 and commemorative conferences, awards to those who contributed
to equal employment, and various kinds of discussions and events have been
held nationwide.

B. Problems and Tasks
  1) The Working Women's Committee, which had been established under
the Ministry of Labor to review important issues related to the Working
Women's Welfare Basic Plan and the policies based on the GEEA, was
abolished upon its 3rd revision in 1999 by the governmental policy on
structural rearrangement because the committee had insufficient records of
holding conferences. This outcome shows that the Ministry of Labor had
been passive in hearing the opinions of experts, industry-labor organizations,
and women's organizations in the formulation and implementation of
working women's policies.
  2) The monitoring and evaluating of the Working Women's Welfare Basic
Plan and the implementation of the GEEA should be done continuously.
  3) In order to put into effect the administrative supervision related to the
implementation of the GEEA, it is necessary to establish an agency solely in
charge of women's employment issues in all the local labor offices. It is
also necessary to increase the number of women's labor inspectors (about
60 persons), which at the present time account only for 7.5% of the total of
800 labor inspectors.


6. Achievements and Tasks in Dealing with the Cases of Discrimination    
   Against Women in Employment

A. Achievements
  Before the enforcement of the GEEA, the cases of discrimination against
women in employment were dealt with by labor inspectors, courts, and
public prosecutors. However, until 1970s, there was almost no incident where
labor inspectors, courts, and public prosecutors dealt with such cases of
discrimination against women in employment. Only in January 1983, a civil
trial regarding discrimination against women in retirement age was held for
the first time in Korea. But the court decisions were unfavorable to women
(first trial: June 21, 1983; second trial: February 15, 1985). Furthermore, in a
case of compensation for a female worker who had a traffic accident, the
court was also unfavorable to the woman on the basis of the premise that
Korean women used to marry by 25 years of age and to quit their job after
marriage. Women's organizations protested vigorously these court decisions
and demanded a legislation to secure gender equality in employment and to
prepare a speedier and easier system dealing with disputes on discrimination.
  1) In order to solve such problems, the GEEA prepared a system of
voluntary conflict resolution between industry and labor.
  2) By the GEEA, in case a grievance reported by a worker is not settled
autonomously, the local administrative agency can give necessary advice,
guidance or recommendation, or have the Employment Equality Committee
undertake a mediation.
  3) Furthermore, the GEEA provided the establishment of the Employment
Equality Committee in order to resolve conflicts by means of mediation.
  4) And in the conflict settlement process, the GEEA imposed the burden
of proof on the employer so that it would be easier for the worker to raise
the issue.
  5) However, the labor committee, courts (civil, administrative, criminal),
prosecutor's office, and the Constitution Court proceeded to deal with the
cases of discrimination against women in employment.

B. Problems and Tasks
  1) Since it is up to the discretion of the business owner whether to
establish and manage the grievance settlement organ, the effectiveness of
the autonomous settlement of the dispute system is in question. Therefore,
the most practical and effective measures to prevent gender discrimination
would be for industry and labor to exchange mutual opinions regarding
women's labor issues including gender discrimination and to prepare the
channel of communication to develop a consensus. And through this channel
of communication, labor and industry should cooperate to voluntarily monitor
the implementation of the GEEA and to make efforts to improve the illegal
practices.
  2) The meaning and merits of the investigation and problem-solving by
an administrative agency is that the process is simple as compared to a
judical agency and also that it is possible to solve the problem in speedy
and expert ways. Citizens also have easy access to receive the redemption
of their rights. Therefore, the basic requirements of the dispute settlement
agencies are credibility, speediness, simplicity, economy, expertise, and
accessibility.
  However, the administrative agency that deals with the women's
employment discrimination issue based on the GEEA tends to be limited in
its functions and authority, and there is the problem that the agency is not
very well utilized yet because women workers are not very aware of it and
do not trust the agency that much. Furthermore, the mediation procedure
does not start at the direct request by the concerned parties but at the
request of the head of the local labor administrative agency. This can be
seen as a major reason that contributes to the low degree of utilization of
the Employment Equality Committee.
  3) The GEEA's standard of deciding gender discrimination is
reasonableness. Such a standard of reasonableness was once the universal
standard adopted by the many countries up to the 1960s, but it has been
criticized as being ambiguous and too much dependent on the subjectivity of
the persons who have the authority of deciding gender discrimination.
Therefore, the international legislative tendency has been to concretely define
the concept of gender discrimination and to apply more strict standards, or
to restrict exceptions strictly since the 1970s. But the Korean situation
deviates from the trend.
  Considering this fact, it is necessary to redefine the concept of gender in
line with the international legislative trend and to make it concrete and
strict so as to practically prevent and regulate gender discrimination. A
principle should be set not to allow different treatment of males and females
except in the case where the employer proves that the different treatment of
genders is necessary due to the nature of the task or the management of
the industry, and in the case of maternity protection and the positive
measures to redress gender discrimination.



Survey Results of Discrimination Cases Against Women in Employment
since the Enforcement of the GEEA


  In order to see how the GEEA is utilized, applied, and enforced in the
discrimination cases against women in employment, this study surveyed and
analyzed the cases that were filed at administrative agencies (local labor
offices, labor committees, employment equality committees) and judicial
agencies (public prosecutor's office, courts, the Constitution Court) for
dispute settlement since the GEEA came into force in April 1, 1988, up to
May 1999 for a period of about 11 years.


1. Number of Cases Filed for Dispute Settlement

  The survey found that a total of 104 cases of gender discrimination were
filed by women employment seekers and working women, labor unions and
women's organizations and employers at various administrative agencies and
judical agencies for dispute settlement since the enforcement of the GEEA.
A total of 129 cases were processed by each dispute settlement agency at
each level, after subdividing the labor committees, the civil courts into
district courts, high courts, and supreme court, and the administrative courts
into high courts and supreme courts. When considering this is the
aggregated number for about 11 years, one might say that the dispute
settlement agencies were not utilized very much even after the enforcement
of the GEEA. However, when comparing this number with the period before
the enforcement of the GEEA, one can see clearly that the tendency to
solve the cases regarding discrimination against women in employment by
dispute settlement agencies since the enforcement of the GEEA has
increased.


2. The Patterns  and Trends in Discrimination in the Cases Entrusted to    
   Dispute Settlement Agencies

  A total of 66 cases were categorized by discrimination patterns. Among
them, the most frequent cases were those of discrimination in dismissal (21
cases, 31.8%), followed by discrimination in wages (11 cases, 16.7%),
retirement age (9 cases, 13.6%), advertisement and recruitment (8 cases,
12.1%), resignation (7 cases, 10.6%), assignment and transfer (6 cases,
9.4%), promotion (3 cases, 4.5%), and sexual harrassment at work (1 case,
1.5%).
  Furthermore, when looking at the trends in cases entrusted to dispute
settlement agencies by discrimination patterns and by year, the cases of
discrimination in wages disappeared after 1996, while those of discrimination
in retirement age disappeared after 1994. But, during the economic crisis in
1998, the number of discrimination cases in dismissal increased rapidly up to
10, and though no cases of discrimination in assignment and transfer had
been filed after 1992, they occurred again in 1998. Therefore in 1998 and
1999, only cases related to structural rearrangement such as discrimination
in dismissal, assignment and transfer, and retirement were filed. It can be
said that the damage of structural rearrangement was concentrated only on
women.


3. Reasons for Discrimination in the Cases Entrusted to Dispute Settlement  
   Agencies

  When looking at the reasons for discrimination in the discrimination cases
against women in employment, the discrimination based only on the reason
of gender constituted 48.5% or 32 of the total 66 cases. In 28 cases (42.4%)
the reasons for discrimination were the marital status of women or the
status of women in the family. There were 2 cases each (3.0%) of
discrimination against women for the reasons of pregnancy, childbirth,
appearance and physical condition, and non-military service.  At the stage of
advertisement and recruitment, discrimination disputes occurred due to the
reasons of gender (3 cases), marriage (including status in the family) (2
cases), appearance (2 cases), and non-military service (1 case). In wage
discrimination, 10 out of 11 cases (90.9%) were due to gender. In addition,
at the stages of job assignment and resignation, discrimination by the reason
of marriage accounted for 100% respectively. In the case of discrimination in
dismissal, 13 cases or 61.9% were by the reason of marriage (status in the
family). Furthermore, in job promotion and retirement age, discrimination by
the reason of gender was 100% respectively.


4. The Degree of Utilization of the Dispute Settlement Agencies

  When looking at the degree of utilization of dispute settlement agencies
through the cases entrusted to the conflict settlement agencies, among the
104 cases of discrimination against women in employment, local labor offices
(46 local labor offices or 6 local labor bureaux) showed the highest degree
of utilization with 36 cases (34.6%). Next were 23 cases of courts (22.1%),
18 cases of the central and district labor committees (17.3%), 13 cases each
for the Employment Equality Committee and the Prosecutor's Office (12.5%),
and one case for the Constitution Court (1.0%).


5. Rate of Admitting Discrimination against Women by the Dispute          
   Settlement Agencies

  In 78 (72.5%) of the 109 cases settled by dispute settlement agencies at
each level, the accused and/or the agency admitted that women were
discriminated against. Especially in the civil district courts, only 3 out of 8
cases settled admitted discrimination against women, showing a very low
admission rate of 42.9%. The high courts showed an admission rate of
50.0%. The rate was 62.5% for the Prosecutor's Offices, and in general the
judicial agencies trended not to recognize discrimination against women. In
contrast, relatively high rates are found in the supreme court of the civil
court (100%), criminal court (83.3%), Employment Equality Committee
(80.0%), and local labor offices (77.8%).



Tasks as a Law to Guarantee Equal Employment Rights in the 21st
century


  We are now facing a great turning point in the history of civilization
entering into the 21st century. In order to prepare for this new age at the
national level, it is necessary to develop the creative human resources that
can produce information and knowledge and to create a social environment
and national development system where all society's members can actively
participate and cooperate.
  From such a perspective, we will need a social and economic order where
the values of human dignity, equality and freedom are all the more
emphasized and where competition, efficiency, justice, and equity are kept in
balance. It should be emphasized in such a context that institutional
measures should be provided for women to participate in the development of
the nation, society, and the family equally with men, and that there should
be the general public's awareness should be raised on gender equality and
the human rights of women.
  In the future, the social awareness and policy weight for the protection of
human rights in our society will be further promoted, and the dispute
settlement agencies which will redeem the damages of gender discrimination
will be further diversified.
  Nevertheless, gender discrimination in the field of employment occurs
frequently and is a major violation of human rights in relation to equality,
work, and survival. Therefore, in order to prevent such  discrimination, the
purposes and direction of the GEEA should be reviewed and should be
revised at least as follows as soon as possible.
  1. Prepare a legal system, rights redemption, and administrative
supervision system to more effectively guarantee the equal employment
rights.
  2. The law should carry out the function of transforming the attitudes,
customs, and system in the labor market that are rooted in the traditional
gender role division perspective.
  3. The law should be revised to correspond to the international standards
that suggest the basic principles of gender equality and human rights and
suggest strategies for their realization, such as the United Nations
Convention to Eliminate Discrimination against Women and the World
Women's Platform for Action, so that it can function as a law to guarantee
the human rights of women in the age of rapidly increasing
internationalization.
  Moreover, as has been shown in the experiences of implementing the
GEEA during the past decade, the effective legislation and implementation of
the GEEA cannot be accomplished only through external developments such
as the improvement of legal provisions or the expansion of administrative
and rights redemption agencies. It is absolutely essential to have the
concerns and participation of citizens in the application, enforcement, and
implementation of the law, especially the cooperation and participation of
industry and labor that are the parties directly concerned and the targets for
the application of the law, and to promote general awareness raising on
gender equality and human rights in society. For this purpose, the following
tasks should be realized.
  1. In order to form the environment for promoting the effectiveness of the
law's implementation, first of all, an education and publicity campaign on
the GEEA are required which enable citizens to understand it and to have
access to the rights redemption system.
  2. The majority of those who have authority to make laws regarding
women's labor issues and apply or enforce laws through review and
judgment are males, such as congressmen, local assemblymen, civil servants
in the 5th rank or above, judges, public prosecutors, lawyers, members of
the labor committees, professors of law, and labor inspectors. This fact
creates the kind of environment where we cannot expect much active and
proper compensation and dispute settlement regarding the violation of
women's right to work. And this can also be a major reason why women
cannot utilize dispute settlement agencies easily and comfortably. In order to
solve this problem, education is required for those in authority as such, and
women's participation should be expanded at the policy level in the
legislation, application, and enforcement of the laws and in the decision
making process.
  3. It is essential in securing the effectiveness, efficiency, and adequacy of
the implementation of laws and policies that such private organizations as
citizens' organizations, and women's organizations continue to monitor and
evaluate the implementation of this law and relevant policies and announce
the results. This is an important strategy to promote social concern and
understanding regarding the GEEA and relevant laws.



References

Cho, S. K. (1999). 'Gender Discriminatory Structural Adjustment and        
      Women's Employment,' How Can We Respond to the Worsening      
      Women's Employment Situation during the Structural Adjustment      
      Process (discussion material), Korean League of Women's            
      Organizations.
Kim, Elim (1995), 'A Study on the Laws Related to Women's Labor for the  
      Purpose of Equality,' Ph.D. diss., Graduate School, Ehwa Womans    
      University.
_________ (1997), A Study on the Legal Measures against Sexual            
      Harrassment at Work, Korean Women's Development Institute.
_________  (1999), Comparative Analysis of the Equal Employment System  
      of Foreign Countries, The Ministry of Labor.
Kim, Elim and Hyunmi Park (1993), A Study of Gender Discrimination in    
      the Employment Dispute Settlement System, Korean Women's        
      Development Institute.
Korean Association of Women's Democracy and Friendship Headquarters to  
      Promote Equal Employment (1996∼1999), Equality.
Korean Association of Women Workers (1993∼1998), Working Women.
Korean Council of Women's Organizations (1998), Counselling Cases of the  
      Working Women's Report Center.
Ministry of Labor (1999), Women and Employment.
Lee, U. K. (1999), Lectures on Women's Studies in Law, Pak Yong Sa.
ILO (1987), Conditions of Work Digest : Women Workers-Protection or      
      Equality, Vol. 6.
_______(1988), Conditions of Work Digest : Work and Family-Child Care    
      Leave, Vol. 7.
_______(1992), Conditions of Work Digest : Sexual Harassment at Work, Vol.  
      11.
_______(1994), Conditions of Work Digest : Maternity and Work, Vol. 13.
Halen Collins (1992), The Equal Opportunities Handbook-A Guide to Law &  
      Best Practice in Europe.
Ian Larbalestier & Denise Russell(ed) (1995), Women and Law Conference:  
      Working for Women? -Anti Discrimination, Affirmative Action and    
      Equal Opportunity, Women's Studies Center, University of Sydney.
Mac A. Player (1992), Federal Law of Employment Discrimination(3rd Ed),  
      West Publishing Company.


 

   
   
 
 
     
   E-mail : freep@kwdi.re.kr-
Copyright 2001 Korean Women's Development Institute-
  
신고
Posted by KWWA
The Current Laws on Women in Korea
kwwa  2002-10-28 15:25:06, 조회 : 504

The Current Laws on Women in Korea / by Elim Kim / KWDI Research Reports /Women's Studies Forum, Vol.12 /December 1996  


* This paper is the reconstitution of the joint research paper entitled
1995 Research Report 200-3, Directions for the Revis ion  of The Current
Gender Discriminatory Ordinances.



Kim El-lim
Senior Researcher, KWDI


PREFACE

Laws  prescribe   the order   of  a   society, which   is  comprised   of
organizations and   people with   different degrees of  political  power,
social standing, values  and w  ealth. Laws  provide behavioral  norms in
society and   are useful  tools  in  resolvi  ng conflicts   by assigning
responsibilities and  bestowing  rights to   each individ  ual and   group
reflects.
When laws enact in society, the situation  various factors, such as, the
politic al, economical, cultural and social changes. It also reflects how
the ruling cl  asses of  the society  perceive problematic  issues, their
efforts to tackle those issues, the national awareness of the issues, the
trend of public opinion and t he power struggles among interest groups or
individuals. Thus,  there are  many f  actors influencing   the forms and
contents of  laws:people,  values, power   strugg les  and political   and
economical situations. Changes in  these factors are  alway s accompanied
by the changes in the laws.
Therefore, the  laws concerning  women indicate  the social  standing of
women and  convey the social e.pectations  and acknowledgement of women's
rights, roles,  an d  ability in  the society.  Also, the   laws on women
indicate the degree of influe  nce women are entitled  to e.ercise in the
creation, revision,   enforcement, appl  ication,  and interpretation   of
laws. The  laws show  how much   power elites are  aw are   of the issues
regarding women.
In  1975,  international   organizations such   as  UN(United   Nations),
ILO(Internatio nal Labor Organization), EC (European Communities) created
international treati es which are intended to bring new social structures
and legal systems based on  new concepts about the  social roles of women
and  gender  equality.  These  efforts  are  clearly  seen   in the   UN's
Convention on the  Elimination of All  Forms of Disc  riminations against
Women  of  1979.  Now,   many countries   refer  to  these  newly   bor n
international treaties as criteria for the revision of their own laws.
In South Korea, however, the laws about women maintain their traditional
formul ations, in that  discriminatory provisions still  e.ist. Also many
discriminatory provisions  in Korean  laws concerning   women violate the
intention of the intern ational laws mentioned above, posing obstacles in
the  Korean   government's  globa   lization plan.   Thus,   international
organizations are now urging the South  Korea Government to rectify these
discriminatory provisions.
With the above  issues in  mind, this research  paper will  describe the
current ch aracteristics and provisions of  South Korea's laws concerning
women and will fo cus  on ways to revise  the unfair provisions regarding
women with the aim of  est ablishing a legal  system that can effectively
be functioned as tools promoting  gender equality.


THE CHARACTERISTICS AND CONTENTS OFLAWS ON WOMEN

1.The Characteristics and Problems of Laws on Women
The characteristics and problons of South Korea's laws relating to women
are as   follows. Firstly,   Constitution has   guaranteed simultaneously
gender equality a  nd protection  of working  women since  its enactment.
These provisions are  the fu  ndamentals of the  law concerning  women in
South Korea. However, discriminatory  provisions still e.ist.
Secondly, the so-called unique provision relating to the Head of Family,
prohib ition  of marriage  between parties  whose surname   and origin of
which are   common, menstruation   leave with   pay, homecoming   e.penses
neither originated from natio n's tradition nor have any creativity.
Thirdly, the laws  on women do  not adequately reflect  the rapid social
changes t aking place now.
Lastly, some provisions in  the laws on women  either are not  up to the
standard  of  or are  even partly  against the  UN convention  abolishing
women discrimination  and the  ILO's convention  on women's  labor. These
provisions do  not satisfy   the  standards stipulated  by  international
treaties which guarantee women's rights.


2.The Framework of Laws on Women

[Table 1]   shows the   laws related  to  women.  The criteria   for the
classification  is how  differently the ordinances(Laws  and Regulations)
are applied based  on se ..  The ordinances  were divided into  two major
categories:the first   relates imp   artially to   both se.es,   intending
equality and   banning se.ual  discrimination  an  d the   other category
contains biased provisions against the  female se.. The oth  er is it is,
protecting or  discriminating against  women. Further,   laws protecti ng
women can   be divided  into  two  categories, laws   protecting maternal
functions (pregnancy,   child delivery,  lactation)  and laws   protecting
females on stereoty ped basis.  In all, there are  four categories in the
laws regarding women:laws  for  gender equality, laws to  protect women's
maternity functions, laws  providin g  protection to  women based  on the
traditonal views against  women and  laws disc riminating  against women.
[Table 2] shows specific e.amples for each categories .

[Table 1] The Patterns of Laws on Women

+- laws stipulating the equality of both sexes
|                                           +- laws protecting wone's
|                      +- laws protecting  -+  maternity furctions
+- laws stipulating    |  women             |
   discriminatory     -+                    +- laws protecting
   treatment by sex    |                       women on stereotyped
                       |                       basis
                       +- laws discriminating
                          against women

[Table 2] The Structure of Laws on Women
-------------------------------------------------------------------------
          classification                         laws
-------------------------------------------------------------------------
1. laws stipulaing          * Constitution
    equality of both         * The Domestic Affairs Litigation Act
    sexes                    * The Labor Standard Act
                             * The Equal Employment between Sexes Act
                             * The Basic Employment Policy Act
                             * The Employment Security Act
                             * UN Convention on the Elimination
                               of All forms of Discrimination
                               Against Women
                             * The International Covenants on Human
                               Rights
-------------------------------------------------------------------------
2. laws protecting women's  * Constitution
    maternity functions      * The Labor standard Act
                             * The Equal Employment between Sexes Act
                             * The Private School Act
                             * The Service Regulation of Public
                               Service Personnel
                             * The Educational Public Service Personnel
                               Act
                             * The Mother-Child Health Act
                             * The Medical Insurance Act
                             * The Livelihood Protection Act
                             * The Child Welfare Act
                             * The Criminal Code
                             * The Criminal Procedure Act
                             * The Criminal and Administrative Act
-------------------------------------------------------------------------
3. laws protecting on       * The Nationality Act
    stereotyped basis        * The Labor Standard Act
    women                    * The Equal Employment between Sexes Act
                             * The Enforcement Decree of Industrial
                               Accident Compensation Insurance
                             * The Basic Employment Policy Act
                             * The Basic Job Training Act
                             * The Employment Insurance Act
                             * The Remuneration Regulation of Pubic
                               Service Personnel * National Penson Act
                             * The Mother-Child welfare Act
                             * The Anti-Prostitution Act
                             * The Livelihood Protection Act
                             * The Enforcement Decree of Infant-Nursery
                               Act
                             * Act on a Person of Merit for Independence
                             * Act on a Person of Merit for Nation
                             * Act on a Dead and Injured Person for the
                               Course of the Justice.
                             * The Income Tax Act
-------------------------------------------------------------------------
4. laws discriminating      * The Family Law
    against women            * The Act on Regislation of Family Head
                               and Family * The Conflict of Laws Act
                             * The Nationality Act
                             * The Enforcement Decree of the Labor
                               Standard Act * Act on a Person of Meri
                               for Nation
                             * Standard for Admission Requirement for
                               Training and Education Colleges for
                               Government Employees
                             * The National Pension Act
                             * The Criteria for Recognizing Benefici-
                               aries of Medical Insurance
                             * Act regarding recruitment tests for
                               government employees
                             * Act on a Person of Merit for
                               Independence
                             * Act on Establishment of Air Force
                               Technical College                    
-------------------------------------------------------------------------

3.Laws Discriminating Against Women
 
  South  Korea   has  gender   biased  laws.  They   eliminate  or   limit
opportunities for w omen and for their rights. These gender-oriented laws
can be divided into two m ajor patterns and purposes.
  First, patterns based  on male  dominance, on  male succession,  on the
traditional views that daughters will be separated from their family once
they get married,  and on  the perception that  family affairs  should be
centered around male family heads.  So far, Family Laws  (The Civil Code,
the chapters 4 and 5)  have gone thr ough  several revisions. However, in
other sectors of South Korean  law, the effe ct of  the revisions are not
reflected well and the discriminatory practices der ived from traditional
family concepts are rampant.
  Secondly, the notion that jobs should be assigned  by gender and by the
ability  and aptitude  of women are  manifested in certain  stereotypical
legal patterns.
 
  A.Family-Related Laws
The Family Laws in South Korea are still  male oriented. The family head
provisi on and  provision prohibiting  people with  the same  surname and
family origin fro m marrying each other are the most problematic.
The Family Law stipulates that only males are eligible for a family head
positi on. "The  family head"  is a  legal term for  a family  member who
represents and le ads family  members. When the family  head, such as the
father,  dies,   the  success  ion   order  for   the position   goes   as
followeds:first son,   the other  sons,  daught  er with   single marital
status, wife, and mother of the family. Female members a re eligible only
when there are no males left in the family or male members ref used to be
the family  head. However,  a female  family head  loses the  family head
status if she gets married. The law says if female family members want to
maint ain family head position even after they get married, they ought to
register th eir husband into  their own family register  (refer to Family
Law, Article 980).
Upon marriage,  the bride   has to register   into her husband's   family
register (ar ticle 862, clause 3) and her name will automatically removed
from the original  family register, which necessitates the elimination of
eligibility for women to be the family heads. If there is no one eligible
to be the family head, the leg ality of the family register will e.pire.
South Koreans see "the e.piration of the legality of family register" as
the e.
tinction of the family, so this kind  of male oriented family perception
maintai ns and fosters the male-oriented family succession system and the
preference fo r baby boys.  Futhermore, The Act on  Regislation of Family
Head and Family stipu  lates that when  a woman gets  married, she should
make a new entry into her husb and's  family register, and so disband her
original family register (article 19, clause 2).
Under the   law prohibiting   marriage between   persons with   the same
surnames and  f  amily origins,  South  Koreans are   not allowed to   get
married if  their spouse  has same  surname with  the same  family origin
(refer to  article 809).  The  law e.cess  ively restricts  the  right to
freely choose one's spouse without any valid reaso ns.
Other e.amples that shows  character of male oriented  family system are
as follo ws:First, the surname  and family origin of  the children should
follow that of   the father. Second,  if the husband  has children by  an
other woman, he can regis ter the children in his family register without
his wife's approval. However, i  n a vice versa case,  the wife needs the
husband approval (article  884). Third,  when  women get remarried,  they
have to wait si. months after  the date of divorc e even  if they are not
pregnant (article 811).
Lastly,  The  Nationality  Act  also  reflects  the   mentality of   male
dominance  and   m ale   succession.  For   e.ample,  when  the   father's
nationality status changes (such as getting a new nationality or forgoing
certain nationality), the  nationality  status of  his wife and  children
have to follow the same suit (article 3,  clause 8). These provisions are
contradictory to the  UN Convention  on the Elimination  of All  Forms of
Discrimination against Women(article 9).
The Conflict of  Law Act  regarding international marriages  states that
the husba nd's National Laws precede in the that of the wife's. Likewise,
the law of the  father's country has precedence  over that of mother's in
the children's legal a ffairs (article 16 or 18).

B.Labor Related Laws
Act on a Person of  Merit for Nation (article 70)  states that males who
complete d their mandatory military  service get of 3  to 5% e.tra points
in recruitment  t  ests in  companies  which have   more than 16   regular
employees. The law  aims to  gu arantee employment  for war  veterans and
males who have completed their military service.
However, with growing number of women applying for government posts, the
system poses  serious a  threat for  the fair   promotion and recruitment
opportunities for women.  Since the additional  point system can  also be
applied to women  upon the   completion of their  military service,  some
people might allege  the system is  no t gender  discriminatory rather it
discriminates against people who can not do a nd have not fulfilled their
military service.
But  ultimately  it  is  indirectly  se.ually  biased   because the   law
stipulates that only males fall under the compulsory military service and
females have to volu nteer to get into the military service program.
To address these problems, The Administrative Reform Committee has asked
the Mi nistry of Patriots  and Veterans Affairs for  revising the related
laws. The cont  ent of the  proposal is  as follows:the e.tra  points for
male applicants who fin ished their military service will be reduced from
3 to  5% to  1.5  to 4%.  The eff  ect  of the  proposal is  to  create a
non-discriminatory recruitment system for go vernment posts, which would,
in turn,  provide more  opportunities for  women and   men who   have not
finished their military  service who can  not do  and have not  fi nished
their military service.
Nevertheless, the  indirect se.ual  discrimination would   remain in the
recruitmen t practice.
Public servant  training  institutions and   colleges started to   accept
female stud ents  in 1989.  But, the unfreindly  quota system  for female
students has been imp lemented since then. The practice does not have any
clear legal  justification n  or clear-cut  justifiable effect.  Only the
internal regulations  of  the related  b  ureaus are   the basis for   the
current practices which greatly reduce the opportu nities for women to be
government  employees  and   take away   their  legitimately  em   powered
authority.
Other  discriminatory  provisions   are found   in  the  laws   regarding
financial compe nsation:The Enforcement Decree of the Labor Standards Act
and Industrial Accid ents  Compensation Act different amounts  to be paid
for compensation by se.. For  e.ample, males who lost  their testicles in
an industrial accident would get mor e financial compensation than female
workers who,   likewise, lost  the reproducti   on functions  due to   the
accidents. In case of e.ternal injuriesof face, however , the opposite is
true. This implies that what is important for  women workers i s her look
appearance thus regarding  female workers as  tools for se.ual  pleasur e
and fostering the societal stereotype of gender discrimination.

C.Social Security Law
The patterns of se.ual discrimination in the  social security law are as
follows :First, once the  daughters and granddaughters  get married, they
are deprived  o f  their entitlement  or only  get limited   rights for a
survivor's pension (found  in The  National Pension Act, article  65; Act
on a Person of Merit for Nation, a rticle 5; Act on a Person of Merit for
Independence, article 5) and they  can no t be  an official income earner
for the  family nor  be the  support for  family mem  bers (found  in The
Criteria for Recognizing  Beneficiaries of Medical  Insurance, guidelines
for life  protection campaign  of The  Livelihood Protection  Act on  a P
erson of Merit for Nation (article  29) and Act on a  Person of Merit for
Indepen  dence)  (article   16) stipulate   that  married  daughters   and
granddaughters cannot   get  employment protection.   However, the son's
spouse (daughter in law)  is inclu ded  in the list  of bereaved families
while in   the case   of the   daughter's spouse   (son-in-law) they   are
e.cluded.
  Second, a pattern  based on the  stereotype or general  conception that
men have  financial  earning power while  women have none,  requires that
men should support  women. The social  security law such  as The National
Pension  Act   and  The   Enforc  emeont  Decree   on  Industrial   Injury
Compensation Act   stipulate that  if the   husba nd  dies,  the wife   is
entitled to receive the full amount of their survivor's pe nson. However,
there are  many restrictions  in  the opposite  case. For  e.ample,  t he
husband should  be over  60 years  old or  handicapped (first  and second
degree  only)  to get  the full  amount of  survivor's pension.   This is
another discriminat ion favoring men since  the women's beneficiaries get
less of money  than men  whe n womn  die even  though women pay  the same
amount of the premium of pension as d o men.
Act on a  Person of Merit  for Nation declare  that grandparents without
adult gra  ndchildren and  children without  male any   adult brother are
entitled to   compensa tion  (article  5).  And  war veterans   and their
families should get an additional  pension in case they do not have a son
whose age is between 24 to 60 (article  1 2). All these occasions reflect
unfair treatment practices against women.
The Enforcement Decrees for the Basic  National Ta. Act(article 20), the
Inherit ance  Ta. (article   3, clause 2)   and General Rules(ta.   office
instructions) defin e  the range  of maternal  relatives as  smaller than
that of paternal relatives, a  nd they contradict the  Family Law revised
in 1990. The Family Law stipulates th e Criteria of maternal and paternal
relatives are to  be same. The  Inheritance A  ct limit women's  right to
inheritance  since  they  apply  different  criteria  in  ea   ch of   the
individual guidelines for ta.ation on asset  aquisition, which have be en
revised between 1990  to 1992.  The guidelines abolished  provisions that
requi re  women to  submit  more rigorous  proof than  men  in disclosing
income resources  and in deciding direct and  indirect dependency and the
range of relatives. The  Enforcement Decree (article 3) set the amount of
inheritance differently by se.
. The article contradicts the provision, based on the premise that women
lack f inancial ability. The government applies the premise in setting up
criteria whe n they consider the source of assets and capital.

D.Laws Concerning Military Service
The laws   regarding the  establishment of   a military  academy and   an
airforce tech nical  college stipulate that  only males are  eligible for
application. The law h as based on the idea that women have limited roles
and capability in accomplish ing militerry service.



DIRECTIONS AND CRITERIA IN REORGANIZINGWOMEN-RELATED LAWS

1.Basic Guideline for the Revision of Laws Regarding Women
Discriminatory laws concerning women should be revised to realize gender
equali ty. However, in South Korea Laws, there is no clear definition for
equality. Th erefore, there is  room for controversy as  to what equality
means and what princ iples and methods should  be applied in revising the
laws related to women in or der to establish  a legal system by which men
and women are treated as equals. T he controversy has originated from the
different points of view as  to the funda mental  differences between men
and women and the present status of women. There fore, a clear definition
of the fundamental differences between men and women c an be an important
criteria by which women can be differentiated from  men. Also , a precise
understanding of the present factors  effecting women can be  a criti cal
tool in evaluating and revising laws protecting women.
From the viewpoint of equality, the time,  procedure and methods for the
revisio n of laws on women have to  be decided with practicality in mind,
reflecting rea lity. However, reflecting reality requires the belief that
should be implemente d in such a way that does not encroach upon the very
basic human right of gende r equality.
The UN  and ILO,  the internatienal  organizations which  most countries
have joine d, have redefined  the legal meaning of  gender equality to be
emploted in intern ational treaties and documents.
After active and constant discussions, the redefinition process got into
full g ear with proclamation of the "international women's year" in 1975.
The European Community(EC)  is a strong  advocate of the  gender equality
policy proposed by th e UN and the ILO.
However, the time of adoption of the new definition and how to accept it
varies country by country. But the  worldwide pattern indicates that each
country has   d eveloped   its own   definition with   major similarities
according to the UN and ILO 's gender equality.
The UN  the ILO,  and  the EC  have adopted  new  international treaties
concerning w omen  and the  treaties show  consistent patterns.  That is,
concerning the  intrins ic   differences between males  and  females, for
e.ample, only females  go through  pregnancy,  child delivery, and  child
nursing  (the  maternity  function)  thus,  law  s   protecting maternity
functions treat men and women as equal in  real terms. Th erefore, gender
equality should be  applied universally  e.cept those  areas relat  ed to
maternity functions. Psychological, physical, functional, and role differ
ences  between   men  and  women   are  not   intrinsic but   rather   are
socio-cultural.  Th  e  difference  are  caused  by  the   in fluence   of
conservative concepts and differen t  role e.pectations. Therefore, using
these differences as  a justification for   se. discrimination cannot  be
accepted.
Childcare, family care, and household labor and responsibilities are not
only w omen's duties rather those tasks should be fulfilled through joint
efforts Men  and women have to assume  equal amounts of responsibilities.
Legislative measure s concerning these areas should be made in a way that
will support both se.es a like.
The UN's Convention  on the Elimination  of All forms  of Discrimination
against W   omen stipulates  that  tentative measures   fostering women's
employment opportunit  ies  do not   have a  discriminative nature   since
centuries of   discrimination again  st  women  has resulted   in inequal
social, and political, economic  status between men and  women (article 4
clause). It also says laws regarding women's maternity protection are not
discriminatory.
Various international  treaties stress   the fact that  the  revision of
women's pro tection provisions is  a tool for gender  equality, labor and
living conditions o  f women should  not deteriorate after  the revision.
The relationship between gen der equality and  protection of women set by
the UN and ILO can provide basic gu idelines and a theoretical frame work
for the further enhancement and structura l development of laws regarding
women.


2.Specific Directions for The Revision of laws on Women
A.Directions for  the revision   of laws regarding  gender  equality and
discriminat ion against women so as to realize gender equality.
First, the definition of gender  equality should be such  that males and
females  should  have equal   opportunities and receive  equal  treatment
under the premises  that both  se.es share the same  responsibilities and
rights as  human  beings e.ce  pt  in the   areas which manifest   certain
physical and biological differences.
These new systems  should be the  basis for the  reformation of people's
awareness and   social customes   which support   the concept   of gender
specific role classific ations  and conservative concets  about women. At
the same time, these  new system s  could help both  se.es e.ercise joint
efforts for the  development of  individua ls and  society alike  so that
both se.es will be able  to fulfill their responsib  ilities both at home
and at  work.뾉)1)Refer see  Kana Siro  Kyoko (1991)   pp.59-73 ; Asakura
(1991) pp. 28-29.;  Nadine and  Taub, Elizabeth  Schneider M.  (1991), "W
omwn's Subordination and the Role of Law," in  The Politics Of Law, David
Kairys (ed), Pantheon Books.
Secondly, gender   equality means  not  only equal   opportunities which
simply prohi  bit se.ual   discrimination but also  seeking  out tangible
results when there  is n  oticeable se.ual discrimination  in opportunity
and treatment due  to structural   and chronic discriminatory  practices.
With theaformetioned theory in mind,  we c an clearly  see that tentative
measures that give favors to  women are definitely an  effective tool for
the realization of gender equality in real  terms. However , the measures
should not create reverse discrimination nor in equality and the measures
should be abolished upon the realization of gender equality.
Thirdly,  gender  equality   means there   is  no  indirect  nor   direct
discrimination.
Fourthly, one of the aims  in the realization of  gender equality is not
only to  achieve  equality by law  (de jure equality)  through abolishing
discriminatory pr ovisions and systems but also  is to establish de facto
equality through removin g the systems,  customs, practices and awareness
which have their roots in tradi tional  concepts of gender specific roles
and in stereotyped  ideas of women's  ab ilities and  character. De facto
equality implies a  social environment where  all discriminatory concepts
such as   gender specific  roles are   eliminated and  there   e.ists no
se.-oriented stereotype so that  human beings are respected  without an y
se.ual discrimination. Furthermore, such a social environment provides an
ope n and fair chance  for everyone to e.ert their  utmost ability and to
ma.imize th eir potential.

B.Guidelines for the Revision of Maternity Protection Laws The maternity
protection laws  carries  social significance   since they  have direc   t
impact on the protection  of the health  of babies and  mothers who would
play c ritical roles in the  Nation, Conmuanity. Therefore, the maternity
protection la   ws should  be compatible   with the  ILO's Convention   on
Maternity Protection. This  is so  that they can  enhance the  quality of
laws regarding  Maternity Protection  by the   financial support obtained
from private companies, social security, and  public funds.

C.Guidelines for the Revision of Laws Regarding Women's Protection.
Basically, the laws  concerning women's protection  can be contradictory
to the   p rinciple  of gender   equality. Therefore,  to achieve   gender
equality, the charact er and content of  the laws concerning women should
be revised in s way that wou ld protect both male and female workers.
However, such   revision does   not mean   unconditional elimination   of
women's prote ction laws.
First of all, the revision  should have its focus  both on upgrading the
quality  of  men's protection  level, living,  and labor   conditions for
males and females.
Then special  protection laws   for women without  juslification  can be
eased or ab olished with the substitution of the alternative measures.
The alternative measures are as follows. Measures boosting effectiveness
of gen  der equality   laws; measures for   firm establishment of   gender
equality laws' ten  tative measures granting  favors to women  to realize
gender equality; strengthen ing the protection  of maternal functions and
labor standards   for workers;  measu  res  defining conditions   for the
quality of life;  elimination low wages  for wome n;  measures for better
child care;  elimination the  concept of  gender specific  r oles  in the
family, workplace and society;  and measures helping workers  to fulf ill
their responsibilities both at home and at work.



CONCLUSION

The purpose and direction of the revision of laws regarding women are to
build  a society in which  human beings are treated  equally irrespective
of se. and are granted due respect.
Within the  framework of  law and  order reflecting   the current social
structure,  the women's  laws should revised  so as to  create reasonable
povisions  which  suit  the  new  social  structure.   Furthermore, these
revisions should  not realize  gend er  equality only   in the noticeable
areas. In   other words,  the revisions   should  help  each  society to
eliminate contradictory social structures which suppress  i ts people and
aggravate gender discrimination. The revisions should be a useful tool in
reforming the social structure into a most desirable one.
Women should   actively participate  in  and influence   legislative and
policy:maki ng   processes since   the interpretation,   application, and
enforcement of Laws are  greatly influenced by the  interests value's and
power of the  public. But  the pr  oportion of  women lawmakers  in South
Korea comes to only 3%. The ratios of wome  n in other important areas of
related to Laws  are as  follows; 1.6% in  local sel  f-governing bodies,
5.2% women   judges, 1.0%   women prosecutors,   and 1.7%   women c   ivil
servants. Since  the ratio  of women  to men  is so   low, the successful
ratifi cation  and  enforcement of   laws regarding  gender equality   are
difficalt to accom plish.
In conclusion, in order to solve  these problems, women's organizations,
labor u nions, and institutions for social  education need to start legal
literacy progr ams  and schools. And  the Judicial Research  and Training
Institute training   cent ers  for  government officials   should provide
education about  laws regarding  wome n  in a   systematic and consistent
manner.


《REFERENCES》

Dahl,  Tove   Stang(1987),  Women's   Law:An Introduction   to   Feminist
Jurisprudence, Ronald L. Craig, Norwegian University Press.
International Labor Organization(1987), Condition of  Work Digest: Women
Workers :Protection or Equality. Vol.6.
Kim, El:lim(1990,   1991), "Research   on the   Revised Family   law and
Movement to R evise the Family Law," KWDI(1995).
"The Reorganization  of Korean   Labor Low on   Women to Realize   Gender
Equality," T he Thesis of Doctor of Law in Ewha Graduate School.
Kim, Ju:su(1991), Family Law, Bummun sa.
Sin, In-ryung(1985), "Unequal Treatment of Women  in South Korea's Law,"
In Wome n.Labor.Law, Pulbit Publishing Co.
Un, Hu:jung,   Sin In:ryung(1991),  Feminst  Jurispudence. Ewha   Women's
Universit y Publishing Department.
KWDI(1990), A Study on Regarding Women's Welfare Laws.
(1992), Statute Book on Korean Women.
(1994),  Comparison  Between  International  Tveaties  and   Korean Laws
Concerning Wo men's Labor.
Losen, Frances(1991),  "The Se.  of Law,"  In The  Politics of  Law, ed.
David Kairy s, Pantheon Books.
Taub, Nadine and Schneider, Elizabeth  M. (1991), "Women's Subordination
and the Role of Law," In The Politics  of Law, ed. David Kairys, Pantheon
Books Platt,   Sabine(1994), "Feministische   Rechtswissenschaft zwischen
Gleicheit  vor  dem  Gesetz  und  Differenz  der   Geschlechter," STREIT-
Feministische Rechtszeitschri ft, 12.Jr.,H 2.


신고
Posted by KWWA
Summary of the 'Significance and Major Contents of the Revised Labor Standards Act to
kwwa  2002-10-28 15:24:28, 조회 : 539

     
         
   
         
  
     
   
     
 

    
   Revision of Laws & Regulations
   
       
 
  
Title  Summary of the 'Significance and Major Contents of the Revised Labor Standards Act to Enhance Maternity Protection'

  
Date  2002-05-14
  
  


Contents
  


"Changes in the laws related to employment of women workers" is a 10-page leaflet.
 
This  provides a summary of the 'Significance and Major Contents of the Revised LaborStandards Act to Enhance Maternity Protection' released by the Korean Ministry ofLabor.  


Click  here to see the text.



   
    
 
 
     
   E-mail : freep@kwdi.re.kr-
Copyright 2001 Korean Women's Development Institute-
  
신고
Posted by KWWA
Child Care Leave Systems : Setting A Research and Policy Agenda
kwwa  2002-10-28 15:22:19, 조회 : 395

Child Care Leave Systems : Setting A Research and Policy Agenda / by Elim Kim
/ KWDI Research Reports /Women's Studies Forum, Vol.10 /December 1994  
  
     * This Paper is the condensation of the '93 Research Report 200-9 by the
KWDI research team Chang Sung-ja, Kim Elim, Choe Yeon-hee, and Chang
Young-a.

  Kim Elim(Senior Researcher, KWDI)
 
I. BACKGROUND AND PURPOSE

  Generally speaking, the Child Care Leave System (hereinafter referred as
the System) is a temporary leave of absence from a place of employment for
the care of a child, without change in status or rank.
  The significance and the necessity of this System may be seen from
various perspectives. From the employee's point of view, it is a workers's
welfare system which can facilitate a healthier balance between work and
family life. In particular, the System can enhance equal opportunity in
employment for women, who by tradition assumed the full responsibility for
childrearing, as it guarantees that their jobs will be maintained even
after marriage or childbirth. From the employer's standpoint, the System is
useful in that it obviates the need for competent female employees to
resign and fosters greater dedication to their work duties. For the
government, it helps to prevent a potential shortfall in manpower resulting
from the trend of women forgoing children because of childrearing
pressures. It also ensures a healthy and sound labor force for the next
generation, reared by the mothers themselves. Finally, from the child's
point of view, his/her own mother rather than by a child care facility or
the like. Additionally, the System helps to relieve the problems in
creating and managing child care centers arising from the shortage of
space, facilities and staffs.
  However, long-term leaves of employees can create another type of
problem, that of finding temporary substitutes for the employees.
Otherwise, other employees in the same work place may have to assume the
extra work load. Though the burden may be certain age group can give rise
to the problem of employers shunning the hiring of female workers or
otherwise adversely affecting them. The problem is exacerbated when the
issue of pay during a long leave of absence is involved. Taking these
points into consideration, many international organizations and advanced
countries have been exerting efforts to resolve this problem, and adopting
relevant legislation to that end.
  In the Republic of Korea, the Child Care Leave System was introduced in
1987 through the Equal Employment Opportunity Act with the aim of
protecting workers as mothers and enhancing the quality of both work and
family life. Together with the management of child care facilities, the
Child Care Leave System helps married women to retain their jobs. However,
the System in Korea is not without substantial problems, and though it has
been over five years since it has been implemented, its record is far from
satisfactory. What is worse, the inclusion of a long-term child care leave
provision under the women's protection clauses of the Labor Standards Act
has actually fostered discrimination among employers, who avoid hiring
female workers likely to take child care leave.
  In connection with the subject at hand, this study aims to : 1)analyze
the positions of international organizations like the UN, ILO and the EC
and models of similar Systems in other countries; and 2) present the System
in the Korean context and find ways of improvement applicable to Korean
society.

II. PRESENT SITUATION OF THE CHILD CARE LEAVE SYSTEM IN KOREA

  1. The System Based on the Equal Employment Opportunity Act

A. Background and Basic Laws Relevant to the Child Care Leave System

  The System in the private sector is based on Article 11 of the Equal
Employment Opportunity Act(hereafter referred to as the Act). Since its
passage on December 4, 1987, the Act has served as a unique legal basis for
the Child Care Leave System, obliging employers to accept a request for
leave under any circumstance when a female worker who has a child under one
year old is required to take care of the child. The system was bolstered on
April 1, 1988. the mechanism to guarantee its efficiency was
institutionalized after the Equal Employment Opportunity Act on April 1,
1989.
  The newly-revised Act regulates that an employer who rejects the female
worker's request for her child care leave shall be punished for penalizing
the female worker. In addition, the period of leave shall be counted as
part of the total length of employment, so that the System prevents
disadvantages against the female worker in matters of retirement pay and
promotion.
  The Enforcement Regulation of the Equal Employment Opportunity Act was
enacted on July 7, 1988 and revised on December 113, 1989(Article 9-2),
with its Enforcement Ordinance enacted on September 9, 1988, and revised on
March 24, 1990(Article 2). The System is stipulated in detail in the
Regulation updated on April 1, 1992(Article 11 of the Regulation of the
Ministry of Labor).
  Social and political support for the child care problem built up to the
critical mass necessary to pass legislation in the 1980s as women began to
recognize the importance of their own human rights, such as the right to
equal opportunity in employment, the right to work for any desired length
of time, and right to merely survive, for that matter. Moreover, expanded
educational opportunities for women allowed greater numbers of women to
enter into the work force. The reduction of household chores as well as a
lower birthrate also contributed to the rise of women working after
marriage. In tune with this trend, women began to stand up against the
injustice of premature retirement and marriage resignation, and demanded a
concrete legal system guaranteeing equal employment for men and women. The
demand for legislative support for child care, which had been the primary
barrier for hiring women workers, became the rallying point of the feminist
movement.
  Consequently in the early 1980s, the government changed its policy on
women's issues and tried to abolish sexual discrimination in the work field
in order to develop and utilize a female workforce to facilitate economic
development. These movements materialized into the following : first, the
Equal Employment Opportunity Act, incorporating the Child Care Leave System
and the installation and management of child care centers like nursery
schools in the workplace, was enacted. Second, the clause on nursery
schools was reincorporated in the Enforcement Ordinance of the Child
Welfare Act on September 1989, restoring its legal basis which had been
eliminated in February 1982. Henceforth, the amendment to the Enforcement
Regulation of the Child Welfare Act provides for the installation and
management of child care facilities at home as will as in the workplace.
Furthermore, the Child Care Act was enacted in January 1991 in order to
solve related problems more systematically.
  However, in actuality the Equal Employment Opportunity Act is quite
different from the UN Agreement on the Equality of the Sexes and other acts
of Western nations which thoroughly eliminate all forms of sexual
discriminations. The Equal Employment Opportunity Act in itself bans sexual
discrimination in the hiring of a female worker, and even threatens
punishment against an employer guilty of violation. However, the Equal
Employment Opportunity Act centers on the female worker's welfare with the
assumption that child care is her sole responsibility. Consequently, it is
merely a legal device to enable women to fulfill her responsibilities at
home and at work. "Besides guaranteeing equal opportunity and treatment
between men and women according to the equality Act aims to improve the
welfare of the female worker and promote her status by protection maternity
and developing her career"(Article 1). The Equal Employment Opportunity
Act's principle regulation protected, she herself should be able to develop
her potential to the fullest in an environment free of sexual
discrimination, based on the reasoning that a "female worker cannot only
contribute to the nation's economic and social development but also play
the important role of rearing the next generation"(Article 2). Chapter 2 of
the Equal Employment Opportunity Act contains provisions on discrimination
in the employment and the treatment of women, and Chapter 3 prescribes a
system and facilities exclusively for the welfare of female workers(Article
5), job security for women (Article 9) and professional training for
women(Article 10).
  The Equal Employment Opportunity Act is quite similar to the Japanese
'Women Workers Welfare Act.' In addition, it also reflects the current
situation in Korea where female workers remain under the dual burden of
housework and employment. With such a purport and background, the Equal
Employment Opportunity Act paved the way for child care leave for female
employees only and guaranteed maternity protection. In other words, the Act
aims to protect motherhood but in Article 2-2 it stipulates that it is
non-discriminatory by gender, as is Article 4 of the UN Agreement of the
Equality of the Sexes. In Chapter 3, however, child care leave and
facilities are defined as a support means solely for women, specifying that
pregnancy, childbirth, childrearing, etc. are applicable to woman only.
This is very different from the provisions in other international
agreements of this nature, which are based on the establishment of the
right to worked for man and woman as well as a supporting measure to
enhance family life in general.

B. Those Eligible under the Equal Employment Opportunity Act
  The Equal Employment Opportunity Act applies to all establishments with
more than five employees(Article 3). It also applies to local employees of
foreign companies in Korea(Law No.811-26735, December 4, 1978). However,
the Equal Employment Opportunity Act does not apply to companies employing
only family members, female workers hiring a housemaid, or civil servants.
  In actuality, the Equal Employment Opportunity Act applies to those
female workers - not male workers - who have children under one year
old(Article 11 ①). Eligible under the Equal Employment Opportunity Act are
all female employees who have children regardless of their marital status
and the length of service at their workplace.
  Article 11 ① fails to define "child," whether as the worker's biological
child, and describes child care leave as a leave of absence to "rear the
child." The Regulation of the Equal Employment Opportunity Act, however,
defines "child" as any infant either delivered or adopted by the female
worker, including any children out of wedlock(Article 11 ① 2).

C. Length and Form of Child Care Leave

  Article 11 ② of the Equal Employment Opportunity Act sets "the length of
leave as one year, including the paid maternity leave before and after
childbirth (60 days) stipulated in Article 60." Article 9 ② of the
Enforcement Ordinance of the Equal Employment Opportunity Act qualifies the
period by stating that "the last day of the leave should not fall past the
first birthday of the child." Thus. no matter when the leave started, it
must end when the child turns one year old.
  Article 11 ② of the Directions on Equal Employment Opportunity reads :
"child care leave should not be limited to the period of the maternity
leave and does not have to be necessarily when the child is under one year
old." In other word, according to this provision, the employer should grant
the leave in full at any time it is requested. The length of the leave can
neither be shortened by the employer nor supplemented with vacation leave
by the employee. According to an administrative interpretation, the
employee cannot take the leave before childbirth(NO. 01254 -16806, February
15, 1990).
  In our country, child care leave means taking time off work to solely
concentrate on child rearing. Other forms of child care leave seen in other
countries like reduced work schedules, part-time work, and modified work
hours are not available.

D. Conditions and Procedure for Requesting Child Care Leave

  In order to ask for child care leave, the female worker must present the
request to the employer(Enforcement Ordinance Article 9-2 ①. The request
should explicitly indicate the length of the leave, starting with the first
day to the last(Article 9-2 ②).

E. Guaranteed employment during Child Care Leave

  The Equal Employment Opportunity Act prescribes that the period of the
leave be counted as part of the total period of employment(Article 11 ②)
to minimize inequitable treatment in terms of promotion, and of the
calculation of retirement pay and annual vacations. The Equal Employment
Opportunity Act reads:"unfair treatment by the employer because of child
care leave is not permitted." Violators are to be fined no more than 2.5
million won.
  Directions on Equal Employment Opportunity define unfair treatment by the
employer due to child care leave as follows(Article 11 ③) : 1) refusing to
accept the worker after her leave or unreasonably changing the work place
after the leave; and 2) deducting the leave period from the total period of
employment which serves as the basis for promotion, retirement pay and
annual vacations(Article 11 ③).
  However, the Directions also read : "not including the leave period in
the total period of employment does not necessarily mean unfair
treatment"(Article 11 ③ 2).
  According to administrative interpretations, calculation of annual
holidays for female workers who take child care leave is based on the total
length of employment with the company, excluding the leave period, and
attendance rate. In the case of perfect attendance, 10 days are allowed for
annual vacations and 8 days for those in the upper 90 percent attendance
rate(No. 01254-7827, May 31, 1991).

F. Guaranteed Wages during Child Care Leave

  The Equal Employment Opportunity Act itself does not clearly define the
issue of wages for the 10 months of child care leave apart from two months
of paid maternity leave. Accordingly, this can be interpreted to mean that
the employer may consider the remainder as unpaid leave. However, this
being the worst case, full or partial salary is possible in accordance with
the Regulation of Employment by a collective agreement. With regard to this
matter, the Directions read : the employer has no legal obligation to pay
the female worker her salary during the child care leave provided this is
not stipulated in the rules of the company, in which case, the owner must
pay full or part of her salary(Article 11 ④).

G. Measures to Guarantee Efficient Implementation of the Child Care Leave
System

  In order to guarantee efficient implementation of the System, the Equal
Employment Opportunity Act prescribes punishment for those employers who
have violated the Provision, Article 11 ③. Thus, an employer who does not
accept the request of a female worker for child care leave or imposes an
unjust treatment for this reason is subject to punishment and a maximum
fine of 2.5 million won(Article 23 ②). This punitive measure, based on a
dual punishment rule, applies to not only the business proprietors but also
to corporate bodies and other employers. In addition, in case there is a
dispute between employer and female employee due to this matter, the
employer has the obligation to resolve the matter by providing a speedy
special administrative process in order to reach a prompt solution.

H. Present Situation Surrounding the System and Its Implementation

  According to a survey carried out by 37 regional labor departments under
the Ministry of Labor on 520 companies with 300 employees or more, 317
companies or 61%of them were already implementing the child care leave
system. Among the companies surveyed, those with the highest rate of
implementation were companies in the banking and financial sectors. 60.1%
of companies in the manufacturing sector were implementing the System. In
the field of social services or private services, 57% of the companies were
implementing the System, the lowest rate. Unfortunately, though the System
exists in the companies, only 88 companies of the surveyed
establishments(27.1%) have utilized the System at least once in the past
five years, and 5,208(or 84.1%) of the 6,189 cases were from the financial
sector. Moreover, 28 companies(or 8.8%) voluntarily paid 20% to 100% of the
basic salary during the leave period.
  From this survey, the Ministry of Labor concluded that though the
implementation of the Child Care Leave System is improving, it falls short
of full enforcement. Companies not implementing the System account for 39%
according to the Ministry, and the situation is even worse in places with
few female workers. The percentage of women in need of the System in the
age group from 25 to 29 is rather small, making up a mere 18.5% of total
female workers. For this reason, the absolute necessity for the System is
not keenly felt and many women tend to avoid claiming this basic right for
fear of dismissal, discrimination or other forms of reprisal. Meanwhile,
the employer shirks the System because of the burden of finding a
substitute for the person on leave, business setbacks due to the absence of
the worked, pre-existing prejudice against women, etc. A survey carried out
by the Korean Women's Development Institute on 249 women in companies with
more than five employees revealed that only 16.1% of them female workers in
companies with more than 300employees, 31.6% in companies with 50 to 299
employees and only 5.6% in companies with 5 to 49 employees made use of the
System, respectively.

III. THE SYSTEM BASED ON THE LAW ON CIVIL SERVANTS IN EDUCATION

  The basis for child care leave for civil servants is found in the
Educational Civil Servants Act. This Act does not provide for child care
leave but grants long term leave due to pregnancy and childbirth (twice
during the period of employment within a three-year period). This leave is
used usually as child care leave.
  The Education Civil Servants Act revised on November 23, 1981, stipulates
that if a woman teacher requests a leave for the reason of pregnancy and
childbirth, the employer must grant the leave twice during her career
within a period of one year. On November 28, 1987, the Act was revised,
prolonging the term for "within a three-year" in order to protect the
health the teacher and thus enhance her capacity as an educator. When a
woman teacher takes leave for more than two years, she must undergo a
training course by presidential decree.
  The Act applies to female civil servants in the education field and those
who teach in civil schools. Thus, other civil servants are not subject to
this Law(Educational Law, Article 73).
  Female civil servants in the educational field may take a leave for the
purpose of child care twice in their career within a period of three
years(six years in total), states the Educational Civil Servants Act,
(Article 45 ① 6). In addition to this, the female teacher may take her
60-day maternity leave.
  During the leave, a female teacher retains her status even though she is
not working. According to the Act, however, the leave in itself is not her
given right but provided at the discretion of the employer. Accordingly,
the length of the leave may be changed.
  There are no particular pre-conditions or necessary procedures that
regulate the means by which the child care leave can be requested according
to the Act. At the end of the leave, the female teacher is justly
reappointed. However, as pointed out earlier, any female teacher who has
taken a leave that exceeds a period of two years must be re-trained in
accordance to Presidential Decree(Article 45 ③). This is done in order to
maintain the quality of education.
  When the cause for leave is terminated, the female teacher must notify
this matter to her employer within 30 days from the expiration of her leave
and it is granted that she will be justly reappointed thereafter.
  According to the Regulation on the Wages of Civil Servants, however, any
form of leave from the post, be it a voluntary leave, suspension or
removal, is not calculated as part of the total term of employment in
determining salary upon his/her reappointment. This differs from the
private sector, which includes the length of the leave as part of the total
term of employment.
  The Education Civil Servants Act does not present a clear definition of
wages during care leave, either. However, Article 28 of the Act on the
Wages of Civil Servants reads : "a certain percentage of the salary shall
be paid if the leave is due to sickness, overseas study or training." A
leave for any other reason will not be guaranteed payment of salary.
Article 19 of the Regulation on the Wages of the Civil Servants stipulates
that following Article 20 ② of the Standing Orders of the Civil Servants,
a salary shall be paid in case of a maternity leave(60 days). A female
teacher, though she may not be paid a salary during her leave, is obligated
to bear the cost for medical insurance, pension and deductions that go with
her salary.
  As child care leave is at the discretion of the employer according to The
Education Civil Servants Act, a request for the leave by a female teacher
can be rejected without any fear for punishment to the employer. If any
form of discrimination is imposed on the female teacher who has requested a
leave, however, she may sue the administration through the General or
Central Committee on Civil Servants' Difficulties according to Article 49
of the Education Civil Servants Act ant the Regulation to Ease Difficulties
of Civil Servants.
  According to a survey carried out by the Korea Educators' Union among its
members and a report thereof, 7,7% or 58 of the 751 married repliers, have
utilized the System. The reasons for the 92.3% of the repliers who did not
use the System were as follows :
  - Did not feel the necessity 29.3%,
  - Were unable to request it at the needed period 25.7%,
  - Were unaware the System existed 12.7%,
  - Wage problems 10.8%
  - Fear of negative career record 4.1%.
  48.4% of the respondents even stated that refrained from taking their
maternity leaves, which is guaranteed by the given Regulations. Their
reasons were as follows :
  - Pressure from employer 30.2%,
  - Unable to find substitute teacher during leave 12.3%,
  - Disadvantages in vacation periods 19.1%,
  - Consideration of students'need and demands of parents 2.0%,
  - Other reasons 36.5%.
  With regard to finding an appropriate solution to this matter, those
surveyed suggested that firstly, a child care center in the form of nursery
schools be installed in the facilities(33.2%) and secondly, that the System
be implemented in a natural manner to enhance the working conditions of the
female teachers. For educators of private schools, 58.8% of those surveyed
also pointed out the existing problems on administering the maternity leave
as well as the child care leave system. Of those surveyed, 97.3% were in
favor of the child care leave and 78.1% of those replied that salary should
be compensated during the leave.

IV. PROBLEMS WITH THE CHILD CARE LEAVE SYSTEM IN KOREA AND GUIDELINES FOR
IMPROVEMENT

  1. Fundamental Principles for Reform

A. Fundamental Guidelines for Reform

  It is the conclusion of this study that an improvement in the Child Care
leave System in Korea would be the most basic step toward achieving gender
equality in employment and in turn improve children's welfare. However, in
order to effect necessary reforms not only do support systems need to be in
place and functioning, but traditional gender roles assigning child care
solely to women, and thus limiting their opportunities for employment, must
be challenged.
  By this view, the first stage of reform would be to raise awareness of
the concept that child care is a communal responsibility to be shared by
men and women, nation and society. Furthermore, industry must actively
implement a child care system with the support of government and society.
Changing the traditional sexual division of roles and public/private domain
divisions are prerequisite to equal opportunity in employment. Reforming
the Child Care Leave System is possible in a society in which gender
equality is a widely-accepted value or it can contribute to the
establishment of such a consciousness.
  In the quest of practicable ways to improve the Child Care Leave System,
this paper has studied the policies of international organizations as well
as the examples of other countries'systems in order to gain a deeper
understanding of the flaws in the Korean system and its suitability to
current labor conditions. With this in mind, this paper has sought to find
an acceptable compromise bridging the ideal with the feasible. To that end,
it is the conclusion of this paper that current Child Care Leave Systems in
terms of their purpose, eligible persons, qualifications for and ways of
applying, and employment guarantees must be analyzed first of all, and that
income guarantees must be publicly funded on a national level. Since the
subject of income guarantees requires more detailed research, this paper
provides only rough guidelines that may serve until the completion of the
second part of this study due in 1994. However, before such income
guarantees can evolve into a comprehensive social security plan, it is
recommended that labor-industrial relations be smoother, and that these
issues be resolved through autonomous negotiations.

B. Problems with the System and Ways to Improve

  1) Flaws in Premise
  In Korea, existing Child Care Leave Systems are designed to protect the
mother(refer to Chapter 3 of the Education Civil Servants Act). Under this
principle, only working mothers qualify. In contrast to international
standards, this policy not only reflects a lack of understanding of
maternity protection itself, but also the prevailing convention that
childrearing is a function unique to women or that women are the primary
child caretakers. With rare exceptions, child care issues are not
considered in terms of maternity protection in developed nations.
  Elsewhere in the world, Child Care Leave Systems have been designed to
prevent discrimination against hiring women, or to maintain women workers'
employment status. The need for various protective policies for women arose
from historical experience and knowledge of social conditions.
  In Korea, legislation covering women workers were drawn up with neither
sufficient study of international conventions and legislation of other
countries, not public debate. As a result, current legislation has in some
cases actually undermined its original purposes, among those the protection
of mothers through child care leave.
  In the future, the nation needs to acknowledge that child care leave is
not a function of maternal protection, and that equal rights for workers,
male and female, must be established. A worker's welfare system that can
successfully integrate homelife and worklife, that can develop children's
welfare, and that can expand the nation's and industry's human resources
must be adopted as the norm. Furthermore, such a system would have to
challenge traditional values-such as sexual division of roles and
public/private domain divisions-that degrade women's labor rights, the
right to equality, and other basic human rights.

  2) Flaws in Eligibility and Suggestions for Reform
  a) Expansion to Include Male Workers
  In Korea, the concept that childrearing is the responsibility of women
alone still prevails, and acts as the most serious obstacle to women's
employment. However, if government policy allows only women to take child
care leave, then it actually reinforces traditional notions of sexual
division of roles. A lack of government support at the national level also
discourages industry from hiring women.
  Although laws may reflect a society's value systems or its actual
conditions, laws can also function to shape societal values. In the future,
enabling male workers to take child care leave will instill a sense of
shared responsibility for child care and household labor, and the awareness
that women cannot be penalized in employment opportunities because of
so-called "child care problems." Conditions that would allow men to
undertake child care duties should be systemized and consolidated, and
profound attitudinal changes must take root. To that end, many countries
have already instituted staggered work schedules, shortened work hours or
other changes in work schedules that enable men to share childrearing
duties, and thus obliterate traditional divisions of labor by gender.
  b) Expansion of Leave to Include Civil Servants
  Female civil servants are ineligible for child care leave under current
Korean law. Only female school teachers who are civil servants under the
Ministry of Education can take pregnancy and postnatal leaves under the
Educational Civil Servants Act. For female civil servants in other sectors,
the lack of a policy is seen as a significant hindrance to the execution of
their work duties.
  Considering the fact that civil servants by definition serve the welfare
of the general populace and that the nature of their work is of the public
domain, their example may lead to the establishment of similar policies for
women workers in the private sector-that is, denying basic worker's rights
and equal opportunity protection in employment by law. This discrepancy
between civil servants and private sector workers is defended for various
reasons of administration efficiency or public convenience, but no matter
the justification, women civil servants are entitled to at the very least
same protection of human rights and worker's rights that would guarantee
humane standards of living of mothers or for the principle of gender
equality- would uphold their human rights, and elevate the value of their
work, rather than mere efficiency. Not insignificantly, the public sector
can set a progressive example for the private sector in the matters of
maternity protection, gender equality, and child care.

  3) Flaws in the System Itself, and Suggestions for Improvement
  a) Introducing the Reduced Work Schedule Scheme
  Child Care Leave Systems in Korea uniformly require the mother to take a
fixed leave of absence, disengaging herself from the workplace during that
time. From the standpoint of the employee, an extended leave of absence
hinders her efforts to advance her career and develop professionalism,
while to the employer, it represents a substantial loss of manpower.
  Thus, Korea should follow the example of advanced nations by expanding
the choices of Child Care Leave Systems other than the single leave-of-
absence model. One alternative would be a reduced work-schedule scheme,
under which the work schedule is shortened on a flexible basis - one day,
one week - a length determined by a combination of special and private
circumstances, between the employee and employer. After the leave period is
over, the employee returns to the regular schedule. Under this system, the
employee is paid commensurate to the shortened schedule, taking into
account the length of the leave and the entire length of employment.
Although salaries must be calculated individually according to various
formulae, complication matters for the employer, this system does alleviate
some of the problems of the leave-of-absence systems, and more importantly,
it fosters among male employees the sense of shared responsibility for
child care. For these reasons, many advanced nations have long since
shifted away from the former system.
  b) Introducing Various Nursing Leave Systems for Children/Families
  Presently, legislation provides for child care leave only until the baby
turns on year old. But in actuality, the employee has not only the
responsibility of child care but other family obligations as well as
job-related duties that may collide. Thus even though the period of leave
(until the infant is one-year old) may pass without incident, the System
does not take into account other critical situations that may arise at any
time throughout the employee's career : children or elderly family members
falling ill; visits to schools; sudden accidents or emergencies; and even
the adoption of children (although adoption is not as common in Korea as in
other countries). Most leave systems in other countries allow both male and
female workers not only child care leave, and family leave for either
parent. In addition, some systems grant fathers leave when when must assume
greater responsibility for child care because the wife is pregnant or for
whatever reason.
  In this country, the concept of child care leave must be expanded to
include time off to nurse children and seniors or other family leave plans,
and paternity leave. By making the leave system more comprehensive, the
competing demands of home and work may be more easily accommodated. Nursing
leave for workers with family responsibilities and administrative
guidelines that establish more generous labor conditions are already being
set up in Japan in anticipation of a graying population.

  4) Problems in Eligibility for and Processing Child Care Leave, and Ways
of Improvement
  First, under the current Child Care Leave System in this country, women
employees are granted leave until their child is one year old, regardless
of the length of employment and without exception. Thus, employers who
demand that workers requesting leave meet a fixed set of conditions are in
violation of the law. Furthermore, a literal interpretation of the law
allows part-time workers, contract workers, and temporary workers the right
to the same terms of leave.
  However, in many other countries, workers are eligible for leave only
after a determined length of employment. Part-time workers have different
arrangements. In this country, the policy of allowing the same terms of
leave to all women employees regardless of employment status may seem
progressive and beneficial in the short term, but more studies need to be
done as to the long term effects on the leave system, and as to whether
such a broad policy works to the detriment of married whether part-time
workers or workers outside of the usual channels are in fact eligible for
child care leave, and if so, under what guidelines that policy should
follow.
  Second, the procedures for applying for child care leave are grievously
lacking. Provisions in the Equal Employment Opportunity Act only require
that the applicant turns in a registration form but offers no guidelines or
time schedules. The Education Civil Servants Act has no guidelines at all.
Since the child care leave is a relatively long term, the applicant is
obliged to inform the employer of his/her opinion and a general time frame
as well in advance as possible so as to minimize the negative effects of
his/her prolonged absence. Advance notice can allow the employer and
employee time to negotiate the period of the leave; to arrange for
substitute workers; or to otherwise reassign the duties of departmental
staff to accommodate the absence. The Child Care Leave System must
incorporate such preliminary procedures if its effectiveness is to be
enhanced.

  5) Problems in Guaranteed Employment after Child Care Leave and Ways to
Improve
  Korea's present System does not explicitly guarantee the worker who takes
child care leave either job security or the resumption of the same position
upon returning from the leave. As there are no legally binding measures,
guarantees of re-employment are adjudicated by labor supervisory boards or
procedural guidelines for civil servants under the Equal Employment
Opportunity Act. In the future, guarantees to maintain the same position
must be backed by law. Also, since violators of regulations against "unfair
treatment" are merely fined 2.5 million won, hardly a deterrent, more
diverse and effective measures to ensure compliance must be enacted if the
law is to have any tooth. Civil servants in  the education sector returning
to their original position and pay scale in the education sector returning
to their original position and pay scale after taking child care leave
should be able to benefit from supervision against "unfair treatment." On
all these points, further studies are required.
 
  6) Problems in Guaranteed Wages during Child Care Leave, and Suggestions
for Improvement
  Under the Korean System, child care leave does not entail compensational.
Only for the sixty-day period allowed for pregnancy leave is the employee
entitled to full wages paid wholly by the employer under the Labor
Standards Act. Also, the employer is responsible for compensation
substitute workers or regular employees working overtime. Because of the
financial burdens posed by the System, employer may avoid hiring female
workers altogether. On the other hand, a non-paid leave System discourages
those who need the System most from utilizing it. Without even minimal
subsistence wages, the employee may barely afford basic living expenses,
much less bear the additional costs of childbirth and child care.
  Thus, if the System is to become more efficient and practicable,
provisions for either partial or full wages during leave are required.
However, such wage guarantees would further increase the financial burden.
However, such wage guarantees would further increase the financial burden
on employers, thereby exacerbation discrimination against hiring women.
Since child care is a societal responsibility as well, it is unreasonable
to demand that employers assume the full costs of child acre leave.
instead, a social security system or a public trust should finance the
compensation of workers on leave. The experience of other countries shows
that income guarantees during leave expedite the participation of male
workers in the System. However, the problem of who will and how to set up
the financial resources is in reality a most difficult one, compounded by
the equity issue of workers who share child care responsibilities with
their partners but do not take leave. What is required are intensive
studies of this problem in its multiple aspects. The second half of this
study, due in 1994, will research these issues at length.
  But nevertheless, in this country employers presently assume all
financial costs of providing full wages during maternity leave, in addition
to the burdens of paid menstruation leaves, paid nursing(breastfeeding)
leaves, shifting personnel work duties, banning pregnant women from
overtime and other costs of the maternity protection policy. A social
security system that includes income guarantees can only be established in
gradual stages as the financial burdens above are also addressed. And until
a nationwide system is in place, labor and management should negotiate
these provisions autonomously. Collective agreements between labor and
management at KBS, MBC, Shinhan Bank, Namsung Electrics, etc. provide for
partial pay during child care leave.

  7) Suggestions on Measures to Guarantee Efficient Implementation of the
Child Care Leave System
  Measures to help implement the child care system in this country include
levying a fine of less than 2.5 million won on those employers guilty of
not providing leave, or guilty of imposing discriminatory treatment on
those who take leave. Also, should conflicts arise between labor and
management over Child Care System regulations, mechanisms are being
established to process such disputes separately. However, a fine of less
than 2.5 million won is a light slap on the wrist at best, and does not
sufficiently deter would-be violators. Moreover, mechanisms designed to
resolve labor-management conflicts over child care leave are weak and
ineffectual at best.
  To strengthen the existing System, it is advised that at every
enterprise, a standing committee composed of both labor and management
representatives be formed as an autonomous body to examine issues related
to gender equality and the Child Care Leave System, and to submit to the
Ministry of Labor reports on their independent findings. Thus, systems for
autonomous inspections and reporting should be put into place. Finally,
other incentives such as tax breaks or official commendations that would
facilitate the implementation of the Child Care Leave System should be
offered as well.

C. Prerequisites for Improving the System
 
  Before the suggestions to fix the Child Care Leave System in this study
can be implemented, the following conditions must first be in place.

  1) Changing the Concept of Division of Work between Sexes
  Even if legislation banning sexual discrimination and granting child care
leave to both men and were enacted and enforced, without concerted efforts
to change this society's long-and widely-held notions about sexual division
of roles, sexual discrimination will never be eradicated, nor will an
equitable leave system take hold. Although Sweden has a paid leave system
with job protection guarantees, only a small percentage of men stay at home
under the System to share in chidrearing duties. This phenomenon has been
attributed to traditional notions of role divisions.

  2) Instilling the Concept of Child Care as a Social Responsibility
  In the Korean legal system, the first and only specific mention of child
care as a societal responsibility in either national or local law is made
in the Child Protection Act(Article 3 ②). Even so, the Act is problematic
in that it reinforces the traditional notion that the responsibility of
child care primarily rests with the individual, and particularly women.
Furthermore, the Act places the economic burden of child care to
principally market mechanisms, relegates national and local autonomous
bodies to auxiliary status, and provides for only selective aid from the
government, which sharply limits its own function and effectiveness.
  Successful implementation of the Child Care Leave System cannot be
accomplished only at eh corporate level between labor and management but
with the active involvement of national and local government bodies.
Government can either provide administrative guidance by establishing a
legal framework for rigorous inspection and enforcement or an autonomous
can provide economic support by establishing a public fund to subsidize
guaranteed incomes for those workers who are on leave or help businesses
which operate model Child Care Leave Systems. Currently the government is
already offering or providing tax breaks businesses that have in-house
child care facilities.
  Furthermore, as income tax laws, corporate tax laws, and tax exemption
regulations already provide tax exemptions and benefits to those
corporations that have installed and operate in-house childcare facilities,
so should these laws offer the same benefits to companies with a childcare
leave system.
  Beyond these measures, government can expand childcare facilities, break
ground for a social insurance system that would subsidize living expenses
during pregnancy leave, and push for increased organization(or
participation) and activity of women in labor unions.

REFERENCES

(Work in Korean)
Kim, Elim(1993), "The Present Situation of Labor-related Laws for Women and
Directions for Their Revision," The Reality of Women's Labor and the
Measures for Its Legal and Institutional Improvement, Labor Committee, the
Korea National Council of Women, Korean Women Workers Association United.

(Work in English and Japanese)
Hyde, Janet S. & Essex Marilyn J.(1991), Parental Leave and Child Care :
Setting a Research and Policy Agenda, Temple U. Press.
International Labor Office(1988), Conditions of Work Digest-Work and Family
: The Child Care Challenge, Vol.7.
諸外國に おける育兒休業制度の現況に關する 調査硏究會(1990), 「諸外國に
おける育兒休業制度の現況に關する 調査硏究 」.


신고
Posted by KWWA
A Study on Laws related to Women's Welfare
kwwa  2002-10-28 15:21:28, 조회 : 415

A Study on Laws related to Women's Welfare / by Elim Kim
/ KWDI Research Reports /Women's Studies Forum, Vol.7 / December 1991  
  
    This paper is a condensation of the 1990 Research Report 200-3 by the
KWDI research team of Park In-duck, Kim Elim, Suh Myung-sun, and Bae
Young-ja.

Kim Elim(Senior Researcher, KWDI)

I. INTRODUCTION

In order to maintain human dignity and to realize real freedom and
equality for all people, it is essential that every citizen be guaranteed
the healthy and cultural life at the least minimum level. The ultimate task
of the state, in the meantime, is to secure rights of its citizens to exist
through the various social policies that correct the structurally uneven
distribution of social resources(goods and services) and to establish
social security measures as a practical vehicle that put the ideal of an
egalitarian society into practice. Because of this effort on the part of
the state, the modern state is called the welfare state.

In the scheme of the welfare state or in the area of social welfare,
however, little attention has been paid to the sexual discrimination that
women have been subjected. This insensitivity toward the plight of women in
society is extended to and replicated in the system of social security
legislation and this in turn has perpetuated the patriarchal order of the
society. E. Wilson in her 1977 pamphlet, Women and the Welfare State, drew
attention to this troubling vicious cycle between the insensitivity toward
women and the perpetuation of the patriarchal order. Since then feminist
after feminist followed her suit and have examined what 'the welfare state'
and 'social welfare' are all about in terms of women. Their critique and
analysis are now in full swing.

Meanwhile, the domestic policy of every government of Korea since 1980 has
been focused on the construction of a welfare society. Accordingly, the
government has been either consolidating the provisions in the Constitution
that guarantee the basic rights of the people to exist or embarking on the
legislation of the social security laws that will provide welfare services
to people. nevertheless, the general understanding of the society toward
social welfare and the will to put it into practice on the part of society
fall far too short to bring about any real change. And the laws related to
the social welfare are all in disarray, too. Few people show active
interest in social welfare and there is not even and significant research
being in conducted this area. When the question turns to women, the picture
becomes even worse. The welfare of individual women is deplorably
neglected. Women's studies from its perspective has yet to produce research
that closely examines the ideology of sexual discrimination reflected in
the legislation of social welfare laws.

Against this bleak background, this study(study period: Sept.1,
1989-Aug.30, 1990) attempts, with a mission to be a part in the advancement
of women's welfare and the elimination of the sexual discrimination against
women, to examine social security legislation, particularly the contents
and application of those laws that define the status and welfare of women.
The study will further present the problems that emerged form the
examination and suggest how to correct them.

As for the methods of the study, welfare related laws and literature from
Korea and abroad were first collected and examined. At the same time
welfare facilities were visited to see first-hand the kinds and quality of
services and programs that are put into place.

II. THEORETICAL BACKGROUND OF WOMEN'S WELFARE

1. The Feminist Critique and Strategies for the Welfare State and Social
Welfare

A. Critique

Western feminists (E. Wilson, M. Mcintosh, G. Pascall, A.S. Sassoon, F.
Williams, etc. (Note: E. Wilson (1977), Women and the Welfare, London:
Tavistock Publications, G. Pascall (1986), Social Policy, London: Tavistock
Publications, F. Williams (1989), Social Policy: A Critical Introduction,
Cambridge: Polity Press)) have been quite critical of the welfare state and
below the major points of their criticism will be outlined. Their first
argument is that the existing welfare policies are fundamentally to
preserve and perpetuate the institution of the family as we know it,
specifically the family in which the man is designated as the breadwinner
and his wife is economically dependent on him and responsible for the
housework. The second contention they are making is that the responsibility
of caring for the children, the elderly, and the sick in the family is
assigned to women. Women are taken as the primary caregivers. Third, they
point out the exclusion of women in welfare policy making. Consequently,
women are now, for their material needs, more dependent on the state than
ever before as clients of welfare services and the source of women's
oppression has expanded from a personal sphere of individual men as to
include the public sphere of the state as well thus they argue. This
attitude on the part of the welfare state, they interpret, stems from the
intention to pass on the cost of welfare and the patriarchal sexual
division of labor in the home to the family.

B. Feminist strategies(Note: The classification of feminists here followed
the one used in A.J. Jagger (1983), Feminist Politics and Human Nature,
Sussex: The Harvester Press.) for social welfare

The contention of liberal feminists is that the root of sexual
discrimination against women is found in the socialization process of
women. Women are discriminated against in educational opportunities and
constantly exposed to a different social atmosphere.

If women are allowed equal opportunities in education and equality by law,
they would overcome the discriminatory climate of the society. Their
strategies(Note: F. Williams (1989), op. cit., pp.45-46.) in the area of
social welfare are first, without any general analysis or criticism of the
social structure, to push  for the revision of those welfare laws that are
sexually discriminating and through education to get rid of sexually
discriminating attitudes of those officials who are handling the
administration of welfare laws and who are welfare providers.

Their second area of attack is to push for new legislation or reform of
existing laws to grant women more opportunities and rights. Third, they
attempt to organize women everywhere to pressure local governments for the
institutionalization of equality policies.

Radical feminists on the other hand trace the roots of sexual
discrimination against women to female physiology. To overcome this, they
argue, women ought to be liberated from biological reproduction. Men should
find roles in child-bearing and child-rearing (Note: Schulamith Firestone
(1970), The Dialectic of Sex, Kim Yeh-sook(trans.), Seoul:
Pulbitchoolpansa, p.204.) and share the responsibility equally. They
further contend that the system of family based on the biological
relationship be dismantled because they understand it gives rise to
patriarchy.

J. Dale and P. Foster(Note: Jennifer Dale & Peggy Foster (1986), Feminists
and State Welfare, London: RKP, pp.156-157.) summarize the welfare strategy
of the radical feminists who criticize every system of the state created in
male dominance. First, radical feminists are attempting to provide
non-sexist alternative welfare services for women. Second, they aim to set
a new trend in the current welfare system by giving women as much knowledge
as possible about their own welfare needs and potential ways of fulfilling
them. Third, they try to develop a new relationship between service
providers and clients, based on shared knowledge and power within
non-hierarchical, democratic welfare structures, which could challenge
conventional, hierarchical welfare institutions.

For Marxist feminists, the sexual division of labor stemming from the
capitalist mode of production is the material foundation of the oppression
of women. In other words, while men are plotting to accumulate wealth, in
the world, women are oppressed by engaging themselves in biological
reproduction and the reproduction of daily labor in private domain.

With this understanding, Marxist feminists demand for women's welfare, the
full participation of women in the labor market rather than welfare
services that are inevitable fragmented and somewhat reactive. When that is
accomplished, then all women as workers will have to join male workers and
work together to abolish capitalism.

According to socialist feminists, "patriarchy and capitalism exist
independent of each other on two separate bases but form an alliance to
produce the system of patriarchal capitalism that give rise to the sexual
division of labor in the home and the division of labor in the labor
market,"(Note: Lee Seung-hee (1987), "The True Nature and Forms of Women's
Problems," The Introduction of Social Sciences, Yoon Han-taek, Cho
Hyung-jae, et al., Seoul: Baeksansuhdang, p.201.) the forms of women's
oppression. They thus demand that the welfare state stop reinforcing the
division of roles by gender that sees the dependence of women and the duty
of caring as to be natural role of women and that the state stop supporting
the particular form of family as the head of the household. They make two
recommendations for their demand: Women be allowed to engage in paid work
in their own right and local communities first take the responsibility to
care for the young, the old, the sick and weak, and other helpless members.

2. The Significance and Necessity of Women's Welfare

The definition 'welfare' varies (Note: Chun Nam-jin (1987), A Discourse on
Social Policies, Seoul National University Press, p.3; Kim Sang-kyun
(1987), The Modern Society and Social Policies, Seoul: SNU Press, p.6.)
according to the understanding and perspective of the writer's defining it,
but what is clear is that it should not be defined in abstract terms. When
it is, it sounds hollow and lacks the will and determination. Futhermore we
feel that the concept of welfare should include the enforcement strategies
that help women overcome the realities of sexual discrimination.

In this study, therefore, 'women's welfare' means creating a state in
which the conditions of life are satisfactory for women and women are
allowed to pursue their own wealth, health, and happiness by being
guaranteed equal rights to enjoy human dignity and a life of quality. With
this conceptual framework, the women's welfare scheme should include, on a
structural dimension of the society, all the necessary measures to reform
social institutions and laws that perpetuate the patriarchal social order
and value system.

In the selection of such women's welfare clients and the types of services
provided, this study maintains the general institutionalization of welfare
services or universalism which recognizes that the livelihood of all people
is structurally at risk at any moment and therefore they ought to have
access to welfare services(Note: As for universalism and interventionism in
social welfare, refer to Chang In-hyub(trans.) (1979), Industrial Society
and Social Welfare, Seoul: Daehan Textbook Co., Ltd., pp.119-121.), and to
abandon the current system in which the government intervenes and provides
welfare services only when family or market economy fails to provide people
with economic security and produces underprivileged or economically
vulnerable classes in mass.

The outstanding feature of modern social security laws is that they adopt
universalism. However, the problem when universalism is adopted is that the
welfare system is likely to remain in name only in the Third World
countries because it entails a tremendous budgetary responsibility on the
part of the government(Note: Lee Hong-jae (1989), "The Social Security and
Human Rights of the Handicapped," The Welfare Legislation for the
Handicapped, The Ministry of Justice, p.18.). Therefore welfare services
are bound to be constrained by the budgetary concerns.

Under such circumstances, Korea can adopt a such universalism in principle
to take the social welfare of every citizen into consideration, but in
reality it starts the programs with low-income women who suffer from both
poverty and sexual discrimination because the welfare program requires
enormous financial support from the state. Then gradually the government
expands the program to encompass every citizen. In other words, this study
recommends the adoption of active intervention or steady universalism(Note:
Ibid., p.19.). At the same time, for the women who are economically better
off, the government, by correcting the sexually discriminating environment,
offers social welfare programs that enhance their changes of social
participation and that enable their self-realization.

The need for women's welfare is rapidly rising and the implementation of
welfare services are gaining urgency as the pace of industrialization is
accelating. The fast and drastic change or development of the society now
affects not just a particular group of women but all women across the board
and more and more women are left vulnerable both financially and
emotionally. Women rather men are more desperately in need of social
welfare services, and it is inevitable that when we consider the changes
that are taking place, such as increased life-expectancy, shifts in
demographic structure resulting from it, reduction in both birth and infant
mortality rates, the acceleration of the aging of the population
(particularly the number of old women is increasing more rapidly), and the
sharp rise in the number of working married women. The change in the value
system, an increase in the divorce rate, and the creation of diversified
family types resulting from industrial accidents are also some elements
that make sexual discrimination and it deprives them of opportunities to
make it on their own. Therefore, the needs of women should command
immediate attention. In particular when the problems of old people and
poverty are addresses, women should be given precedence over men.

If we examine the history of women's welfare in Korea, we find that it has
not yet emerged from the intervention stage and the services under the
title of 'welfare of housewives and women'(Note: Prof. Chang So-young
criticized the term 'housewife' on the ground that "it is the product of
the anachronistic social practice of predominance of men over women and
debases women's status."(Chang So-young (1985), "The present situation and
task of welfare services for women," Social Welfare, Fall, Social Welfare
Council of Korea, p.68). The general definition of housewives' welfare by
Social Welfare Council of Korea is as follows. "The term "housewife' refers
to both wife and woman. Therefore in the framework of housewives's welfare,
unmarried women are not separated from married women and it is concerned
with overall welfare of general welfare of all women."(Social Welfare
Council of Korea (1977), Collections of Korean Social Welfare, p.74; Park
Song-kyu (1988), An Essay on Social Welfare Legislation, Mission for
Editing and Diffusing of Laws and Decrees, p.460.) are mainly directed at
the women in need of assistance such as household heads of low-income
families, single mothers, women of the streets, and runaways. Programs are
piecemeal and after-service type. Since the mid-1970s when Korea witnessed
sizable economic growth, the attention of the people turned to the
distribution of wealth in the society and to inequality among its members,
and these questions created tension between classes. The government,
therefore, sought to forge the policy(Note: Lee Hye-kyung (1990), "Social
Welfare Related Laws and Women," The 6the Spring Scholarship
Conference-Women and Law, Korean Association of Women's Studies, p.11.)
that could meet all the challenges created by the rapid change in society
while attempting to promote social development without interruption and the
balance between classes. Women's movements were gaining momentum here at
home and abroad and policy shift result, though they were fragmentary.
Prof. Sohn Eui-mock(Note: Sohn Eui-mock (1984), "A Brief History of
Housewives' Welfare Projects,' Social Welfare, Summer, Social Welfare
Council of Korea, p.33.) sums up the main feature of women' welfare during
this period as shifts in focus. Before, the focus of women' welfare policy
was on assisting needy women, but from this point on the policy takes an
aggressive turn and includes every woman as clients. He sees that the
programs are designed to help women realize their full potential. Some
programs are preventive measures or are for the cultivation of healthy and
sound home environments.
However, the current framework of social welfare policies is 'resolution
in the home first, social security next' and it is the reflection of
general expectation within policy making circles that the diversified
welfare demand in modern society be met primarily in the home. But this
understanding on the part of policy makers has the danger of transferring
the responsibility for social welfare from the government to the family.
when that happens, the burden of welfare activities will ultimately fall on
women. What it signifies in turn is that the 'welfare of the family' still
takes precedence to that of women in our society and such orientation in
welfare design is well demonstrated in the fact that the cause and
resolution of women's problems are approached and tacked as something
endemic to women rather than to grapple with from a structural perspective.
In spite of some marginal changes and improvements in welfare policies, we
see how deeply the ideology of patriarchy and the idea of intervention in
social welfare are rooted in the minds of the people and in society.

III. WOMEN'S WELFARE: INTERNATIONAL TREATIES AND TRENDS

The extent of social welfare and its institutions differ from country to
country on the basis of the socio-economic conditions of each country,
political system, and the basic understanding of social welfare.
Nonetheless, the ideal of social welfare that pronounces the protection of
every citizen's right to live has now emerged as a common international
norm beyond the boundaries of individual nations and the effort to realize
this ideal has been actively tried not only in the industrialized countries
but also in the countries of the Third World in various ways(Note: Some
important references on this are Robert R. Friedmann, Neil Gilbert and
Moshe Sherer (eds.) (1987), Modern Welfare States: A Comparative View of
Trends and Prospects, Great Britain: Wheatsheaf Books Ltd.; Stewart
Macpherson (1982), Social Policy in the Third World: The Social Dilemmas of
Underdevelopment, Great Britain: Wheatsheaf Books Ltd., etc.).

1. The World Declaration of Human Rights

The World Declaration of Human Rights adopted by the Third UN General
Assembly on December 10, 1948, is significant because it was the first
attempt to recognize as basic human rights the social welfare that had been
practised in various countries to all different degrees and contents. It
was also an attempt to establish an international ground for social welfare
and to enforce it internationally.

In particular, this declaration clearly articulates the equality of men
and women in social welfare and the rights of mothers and children to be
protected and supported. However, the question of equality between the
sexes in social welfare was not raised in earnest in this declaration
because what the declaration did was to lay the ground rules for social
welfare. Naturally, though, the issue of women's welfare was expressed in
abstract terms.

2. International Agreements on Human Rights

The effort to embody the principles spelled out in the World Declaration
of Human Rights were expressed in international agreements and protocols
adopted: "International Agreement on Economic, Social and Cultural
Rights"(Agreement A), "International Agreement on Civil and Political
Rights"(Agreement B), and "Protocol Adopted on Agreement B".

In each agreement there are specific provisions for women's welfare.
Article 9 of Agreement A, for instance, recognizes the right of every
citizen to receive social security. It demands the state to guarantee
sexual equality in the labor market including the practice of equal pay for
equal work (Art. 7, Agreement A). It specifies the maternity protection for
some time before and after parturition, and when the mother is working she
should be given either a paid maternity leave or a vacation attached with
comparable social security benefits (Clause 2, Art. 10 of Agreement A).
While Article 23 of Agreement B affirms the rights of families to be
protected by the society or state (Clause 1), it clearly states that the
government has the responsibility to draw measures that give equal rights
and duties to both parties of a married couple during their marriage and at
the time of divorce (Clause 4).

During the deliberations on the International Agreement on Human Rights, a
heated discussion was exchanged on the issues of sexual equality and
protection of women when the meeting turned on the deliberation of Clause
2, Article 10 of Agreement A, which deals with the duration of women
protection(Note: Yoon Hoo-jung & Shin In-ryung (1990), Legal Women's
Studies, Seoul: Ewha Womans University Press, pp.74-75.). Since then it has
been the basic position of the UN 1)that the duration of maternity
protection be limited to a brief period before and after parturition
because any special protection for women is likely to give rise to
discrimination against women and 2)that the UN disclaims the sexual
division of labor and the responsibility of child rearing be shared equally
between the men and the women.

In Korea these agreements were ratified on April 10, 1990. As of July 10,
1991, they will have the same force as domestic laws.

3. The ILO Treaty

The ILO(International Labor Organization) has been diligently trying to
formulate an internationally binding standard of social security by issuing
numerous recommendations and by the adoption of treaty.

As for women's welfare, the ILO in its treaty, recognized the sexual
division of labor in which the responsibilities for domestic work and child
rearing are attributed solely to women. The main feature of the treaty was
to provide working women with measures that allow them to keep both their
work and family. But this basic view of the ILO on women's welfare reached
a turning point in 1975 when the UN declared the world year of the women.
Since then it has shown changes in its understanding of women's
welfare(Note: Yoon Hoo-jung & Shin In-ryung (1990), op. cit., p.33.).

In 1975 when it adopted the 'Declaration on Equal Opportunities and Equal
Treatment of Working Women' and its Action Plan, the ILO finally emerged
from it hold on the sexual division of labor in which the domestic duties
and child-rearing are understood to be inherent roles of women. Since the
UN Convention on Elimination on Sexual Discrimination Against Women came
into effect in 1979, the ILO released the 'Recommendation on Equal
Opportunities and Equal Treatment of Workers Responsible for a Family' in
1981(no.165). In that recommendation the ILO made it clear that a family is
the shared responsibility between both men and women, and provided several
measures accordingly.

Since then, the new view of the ILO was further advanced, particularly in
its 1985 Report(Note: 島田とみ子 (1986),
"女性と社會保障の未來-ILO報告を讀んで-", 「婦人勞動」, No.11, pp.78-83:
This report was prepared through repeated discussions among 10 specialists
from Sweden, U.K., & U.S.A.) 'Toward the 21st Century-the Development of
Social Security.' In the area of social security, the report emphasized the
correction of unequal treatment between men and women based on the sexual
division of roles. The report demands the definite measures for women's
welfare and urges to recognize the domestic work as gainful employment and
grant wives rights to receive sparate pensions.

4. The UN Convention on the Elimination of Sexual Discrimination Against
Women

The UN Convention on the Elimination of Sexual Discrimination Against
Women was adopted in the UN in 1979 and it mainly deals with women's
welfare. But section 5 of Clause 1, Article 11, specifically recognizes the
equal rights between sexes to receive the same benefits in social security
(in retirement, unemployment compensation, disease, old age, disability
compensation, etc.). To guard against abuses when women get married or
become pregnant, the convention prescribes to establish social security
measures that provide support. While the convention reaffirms the principle
of coexistence between two ideas of 'equality' and 'protection' for women,
the concept of equality is understood to go beyond dismantling the
traditional division of roles between sexes and to include equally sharing
domestic obligations between sexes and social participation between the
sexes. But in the light of the socially ingrained practice of inequality,
the convention agreed to adopt the special measures that could expedite
real equality between sexes.

This convention is the very embodiment of all the legal principles of
sexual equality and it was on the 18th of December, 1984 that this
convention was ratified in Korea. As of January 26, 1985, it began to have
the same effect as domestic law.

5. The Women's Development Strategies Toward the Year 2000

Interest in the women's welfare transcends the national boundaries and
such interest resulted in the adoption of the UN Decade of Women's
Development(1976-1985). At the completion of the decade, the resolution
'Women's Development Strategy Toward the Yea 2000' made up of 327
paragraphs was adopted to pledge a new beginning.

IV. THE ANALYSIS OF THE LAWS AND REGULATIONS RELATED TO WOMEN'S WELFARE

1. The Systematic Organization of Women's Welfare Laws

A. Judiciary

The women's welfare laws in this study refers to the whole body of law
dealing with the welfare and status of women within the framework of social
security laws. The social security laws(Note: For the various definitions
of social welfare related law, cf. Lee Hye-kyung (1990), op.cit., p.607.)
in turn here are the laws that are designed to guarantee people's rights
and to provide true equality by intervening if necessary, in the
diversified spheres of individual life and in the distribution of wealth
and services on the part of the society or state while respecting the
freedom of each individual.

In this perspective the laws belonging to this category are divided into
the social security laws and the social security related laws.
The social security laws assume that accidents are intrinsic to modern
society because of structural institutional imperfections and include the
whole body of laws(Note: Kim Yoo-sung (1985), The Social Welfare Act,
Seoul: Dongsungsa, p.30, pp.66-67; Kim Yoo-sung & Lee Hong-jae (1985), The
Social Welfare Act, The Textbook of Korean Correspondence College, pp.2-3.)
that the state has promulgated to seek solutions to such accidents and to
provide for direct, institutionally built-in aid to guarantee the secure
livelihood to every citizen. These laws are a direct intervention of state
to embody the rights of citizens to live, not a mere intervention in the
contractual or financial realtionships between the individuals. In terms of
enforcement the laws are divided into social insurance laws, public aid
laws, and social service laws(Note: Clause 2, Article 34 of the
Constitution of Korea 'obliges social welfare of the people' and Article 2
of the law concerned with the social security in the meantime defines
social security to mean both social insurance and public aid. Therefore,
under the present legal system we understand the social security act is
differentiated from the social welfare laws. However, this classification
is too a narrow classification seen in classical literature and does not
fully express the institutional nature and characteristics of social
security laws. Thus in this study the social welfare(service) laws are
included in the social welfare law system and interpreted in the narrow
sense are included in the social welfare law system.).

Social insurance laws provide secure livelihood by directly paying the
cost of living allowances to the subscribers when their livelihood is
threatened with loss of their ability or opportunity to work(due to
sickness, injury, disability old age, etc.). The spirit of these laws is to
extend social support to those threatened with livelihood while stressing
the need of income redistribution. These laws lay monetary benefits to
their subscribers when the time comes from the funds they have contributed
to and they have borrowed the insurance technique in operation of the
services. The laws belonging to this category are the National Pension Act,
Medical Insurance Act, and the laws dealing with Public Officials and
Private School Teacher and Staff Medical Insurance Act, and Acts and
Regulations dealing with the prevention of the irreversible lung damage and
with the protection of the workers suffering from irreversibly damaged
lungs.

The whole body of Public Aid Laws make it possible for either the state or
a public body to intervene and ultimately provide minimum livelihood when a
citizen is unable to work and is thus without any means of support or is
face with a very low-income. The clients under the protection of these laws
are provided with livelihood allowances without any contribution on their
part and these laws are the most fundamental and direct legislation of the
rights of the people to live and exist. The Livelihood Protection Act and
Medical Protection Act are two examples of the Public Aid Laws.

The Social Service Laws were set up to help people overcome
livelihood-threatening obstacles that they may face in the course of every
life and to create a momentum for those threatened with livelihood to get
back into the mainstream of the society. The laws included in this category
provide, through personal assistance and facility services, non-monetary
benefits such as protection, counseling, guidance, treatment, and
rehabilitation to their clients. The examples of these laws are the
Maternity Welfare Act, Old-age Welfare Act, Child Welfare Act, and the
Handicapped Welfare Act.

Social security related laws are closely tied with the social security
laws and they include the Family Law, Tax Laws, Labor Relations Law, and
House Supply Law. Since the social security benefits and services are not
just limited to the individual client in need but extended to his or her
dependents, the Family Law has a role to play in determining the extent of
beneficiaries and the scope of service because it is the Family Law crucial
whether the client is married or divorce, if she or he has a family who can
provide support and because it is the Family Law that determines family
relations such as marriage, kinship, and inheritance.

Tax Acts, especially the Inheritance and Gift Tax Acts, have a significant
bearing on the social security laws because taxing inheritance and gifts is
one way of correcting the unfair practices of distributional relationships
in capitalist society where private ownership is the material basis of the
economy and thus wealth is unevenly distributed. Tax Acts function as a
tool of social policy.

The Labor Relations Law also has strong bearing on the social security
laws. First, the Labor Relations Law maker it possible for the state to
intervene between the labor and management and provide workers with the
life of health and minimum leisure as a way of guaranteeing the rights of
workers to live. Second, the labor conditions for workers are critical
variables in determining the contents and extent of the social security
allowances. Third, the ultimate goal of the social security laws is to
assist workers to become economically self-supporting and that is what the
Labor Relations Law is all about.

What distinguishes the social related laws from the social security laws
is the principle at work and the jurisdiction. Each individual law has its
own particular characteristics. Therefore, the social security related laws
are not themselves quite adequate to deal with the women's causes. The
issues of women's welfare and status ought to be organized into a separate
women's welfare related legislation in order to build an optimal legal
system for women.

Nevertheless, the superior or organic laws that determine the jurisdiction
of the women's welfare related legislation will be the Constitution, the
laws pertaining to social security, and social welfare service laws.

On the jurisdictional basis of the social security related laws, the
women's welfare related legislation too could be systemized. An outline is
presented in Table-1

(Table-1) The System of Women's Welfare Related Laws & Jurisdiction
---------------------------------------------------------------------------------------------
Legal System                                Key Jurisdiction of Women's Welfare Related Laws
---------------------------------------------------------------------------------------------
Organic Law                               The Constitution
                                             Laws Related to Social Security
                                           Social Welfare Service Law
---------------------------------------------------------------------------------------------
              Social Insurance Law  The National Pensions Act(Pension Laws of Public Officials
                                      & Private Medical Insurance School Teachers Included)
                                    Medical Insurance Act(Medical Insurance Acts of Public
                                      Officials & Private School Teachers Included)
                                    Industrial Injury Compensation Act
Social       --------------------------------------------------------------------------------
Welfare      Public Aid Laws      The Livelihood Protection Act
Act                               Medical Insurance Act
              --------------------------------------------------------------------------------
                                   Mother-child Welfare Act
                                   Mother-child Health Act
               Social Welfare      Child Welfare Act
               (Service)Laws       The Anti-prostitution Act
                                   Old-age Welfare Act
                                   The Handicapped Welfare Act
---------------------------------------------------------------------------------------------
               The Civil Code      Relations & Inheritance Law
              --------------------------------------------------------------------------------
               The Tax Laws        The Inheritance Tax Law, Gift Tax Law, Income Tax Law, etc.
              --------------------------------------------------------------------------------
Social                            Individual Work Related Laws(Labor Standard Act.            
Security      The Labor Related     Gender Equal Employment Act. Employment Security and
Related       Laws                  Promotion Act. Basic Vocational Training Act. and
Laws                                industrial Safety and Health Act, etc.) Collective Labor-
                                     management Relations Law(Labor Union Act. Labor Dispute
                                     Mediation Act. Labor-management Council etc.)
---------------------------------------------------------------------------------------------

B. The Systematic organization by applicable clients

The women's welfare related laws are systemized and summarized in Table-2
on the basis of the applicable clients of the laws(Note: According to the
nature of the problem, this study divides the recipients into women to be
protected, working women, ordinary women, and rural women, and laws
applicable to all women are classified under all applicable category, laws
applicable to specific groups of women under individually applicable law
category. But when a recipient is eligible for two different laws, she is
classified under the one that better expresses the characteristics and
purpose of her particular situation.). While this formulation very
persuasively highlights the interventionist nature of the current social
welfare related laws and vividly shows that the laws are repeatedly applied
to women belonging to specific classes, the standard of application is not
clear and when the clients are duplicated in these laws and that there's no
clear-cut system to sort them out.

(Table-2) The Systematic Organization by Applicabel Clients of the Women's
Welfare Related Laws

Univerally                   Clients                         Individual Related Laws
  Related Laws

The Constitution      Women to       Female household heads    Mother-child Welfare act
Laws related to       be protected      of low income family   Livelihood Protection Act
    Social Security                   Unweded mothers           Medical Insurance Act
Social Welfare                       Women engaged in          Child Welfare Act
    Project Laws                       prostitution and
National Pensions                     exposed to prostitution   The Anti-prostitution Act
    Act               Working
Medical Insurance    women            Working women in the formal    Industrial Accident
   Act                                   sector                       Compensation Insurance
Mother-child                          working women in the informal  Act Labor Related
   Health Act                            sector                       Laws(Labor Standard Act,
Old-age Welfare Act                                                  Gender Equal Employment
  the Handicapped      Women at                                       Act, Labor Union Act,
    Welfare Act        large           full-time housewives           etc.)
Family Law Tax Law                    single women
Act Related to Housing Women in
                        rural &
                        fishing village


2. The Consitutional Basis of the Women's Welfare Related Legislation and
Legal Principles

The Constitution of the Republic of Korea not only furnishes the
foundation to interpret all other statutes including the provisions in the
Constitution itself, but also points the direction for new legislation or
policy decision. In addition, it embodies the fundamental principle that
guides all including the public servants and all governmental bodies to
respect and protect it, and adopts the doctrine of the welfare state for
its citizens.

In a welfare state, which is founded on democratic principles which allows
personal freedom in the pursuit of political, economic, and social
activities, the state intervenes in order to provide its people with a
decent life by removing, through aggressive economic or social policies,
all contradictions arising from free competition, in order to embody social
justice or true equality by eliminating unemployment, disease, poverty
springing from the socio-economic structure of free competition(Note: Kim
Cheol-soo (1988), An Introduction to Consitutional Studies on Declaration,
Seoul: Parkyoungsa, pp.73-78; Koo Byung-sak (1989), The Legal Principles of
New Constitution, Seoul: Parkyoungsa, pp.173-174.).

The constitutional basis for the women's welfare related legislation is
found first in its adoption of welfare state doctrines as the organic
foundation of state. Then there are separate provisions to embody the
doctrines. For example, Clause 1, Art. 34 guarantees the right of the
people to live, and another provision(Art. 10) obliges the state to
guarantee the basic rights of the people to pursue human dignity, value,
and happiness. This provision is the embodiment of the ultimate norm of the
state and comprehensively prescribes the basic rights of the people. The
Constitution also secures equal rights(Art. 11). Furthermore, the
Constitution obliges the state to 'make efforts to' advance the welfare and
interests of women(Clause 2, Art. 34) and to 'protect maternity'(Clause 2,
Art. 36), and obliges to guarantee equality between men and women in
employment(Clause 4, Art.32) and in family relations(Clause 1, Art.36).

The basic right that embodies the rights of the nation to live can be
defined as the right of all people to demand that the state actively
intervene and secure all the necessary conditions for everyday human life,
and the provision in Clause 1 Article 34 of the Constitution, 'the right of
every citizen to lead decent life,' is the basis of all basic rights. The
right to have access to social security is a kind derivative right(Note:
There are several views on the provision of the right of the people to
exist (Art. 34) in the Constitution: some say it means the provision of
programs; for some it is an abstract right; for some it means the
materialization of right; and some believe it is the combination of both
abstract notion and materialization of right. This study believes it to
mean the materialization of right in the conviction that more aggressive
programs ought to be worked out for social security (For this point, confer
Kim Man-doo (1985), pp.213-219; Kim Yoo-sung & Lee Hong-jae (1989),
pp.38-40; Kim Cheol-soo (1988), pp.461-464; Koo Byung-sak (1989),
pp.529-533; Chang Hoon (1984), pp.74-77.) or a means to embody the basic
right to exist with dignity, and Clause 2 Article 34 of the Constitution
clearly and loudly obliges the state to provide the nation with social
security and social welfare.

The right of the nation to receive social security includes the right of
women to receive the same services as men and not to be discriminated
against in the dispensation of the social security benefits without any
other reason than gender. Here the sexual equality in employment and in
social welfare means relative and practical equality. Therefore the
provisions of maternity protection and provisional preferential treatment
of women established in the light of women's biological characteristics
such as pregnancy, parturition, and nursing are not considered
discriminating(Note: As for protection provisions for women and equality
provisions for men and women, confer Yoon Hoo-jung & Shin In-ryung (1990),
op.cit., pp.80-88; Kim Elim (1989), "A Study on the Gender Equal Employment
Act," The Labor Law, Vol.2, Labor Law Association of Korea, pp.125-133.).
However, the sexual division of labor based on the patriarchal way of
thinking and typical negative stereotyping of all women by isolating them
collectively from men are considered as sexual discrimination. Here we see
clearly that the attainment of equality between the sexes and the full
embodiment of social security system are inseparable(Note: 金城淸子 (1983),
「法女性學のすすめ」, Tokyo: 有斐閣, pp.146-166.). Moreover, the provision
for the protection of women presumes that women are solely responsible for
housework and child rearing while the provision of provisional preferential
treatment presumes women economically dependent on men. These provisions
should be re-examined and their propriety objectively assessed. The
contents of women's rights to receive social security benefits and services
is outlined in Table-3(Note: Kim Yoo-sung (1985), op.cit., p.73; Kim
Yoo-sung & Lee Hong-jae (1989), op.cit., p.40.).

(Table-3) Normative Structure of Women's Rights to Social Security
+----------------+
| Right to Live  |
+----------------+                     +-Right to Claim Social Insurance
+----------------+       +-----------+ |
| Right to Lead  |    +--|Substantive+-+-Right to Claim Public Aid
|  Humanly Life  |    |  |Rights     | +-Right to Claim Social Welfare
+----------------+    |  +-----------+    (service)
+-----------------+   | (Rights to Claim
| Right to Receive|   |   Social Security)
| Non-sexist      |---+               +-Right to File and Dispute Social
| Social Security |   | +------------+|  Security
+-----------------+   +-| Procedural |+-Right to Participate in Administ-
+-----------------+     |  Rights    ++  ration of Social Security
| Equal Rights    |     +------------++-Right to Demand Social Security
+-----------------+                      Legislation

3. The Main Feature and Problems of the Women's Welfare Related Legislation

What this study will examine among the social welfare related laws is
largely the social security laws; the National Pensions Act and Medical
Insurance Act belonging to social insurance laws, the Livelihood Protection
Act as one of the public aid laws, and the Mother-Child Welfare Act, the
Child Welfare Act, the Anti-Prostitution Act from the domain of social
service laws. Among the social security related laws, the Gender Equal
Employment Act will be examined. The Workers Accident Compensation
Insurance Act, Medical Insurance Act, Maternity Health Law, and the social
security related laws(such as Family Law, Tax Laws, Labor Relations Law)
will be dealt with in their due sections(Note: The detained examination of
the Family Law and the Tax Law will be dealt with in the Study on the
Revised Family Law and Its Revision Movement, a follow-up research project
of this study. However, in order to examine the contents of the social
security act, in the report of the research it was itemized into and stated
the purpose of characteristics of the legislative background and its
implementation, fundamental ideology of the act, the applicable recipients,
the major contents of allowances, provisions pertaining to women, delivery
system, but the given space of this article dictated to outline.).

A. The Social Security Act

1) The National Pensions Act
The National Pensions Act is a kind of social insurance law to reduce the
impact of old age, fatal diseases, or death. A pension is paid to the
subscribers from the fund they have contributed, and the purpose of the Act
is to secure a long-term income source to the people, to bring financial
stability and ultimately to promote the welfare of the people.

The National Pensions Act was promulgated on December 31, 1986, and
revised on March 31, 1989. The national pension system has been in full
force since January 1, 1988.

The fundamental intention of the act is to provide the nation with a
steady source of income against the accidents that are beyond the human
control in an industrialized society. The act adopts universalism in its
application and therefore every citizen between 18 and 60 years of age
residing in this country is eligible(Note: The people eligible for the
Public Officials' Pension Act, the Military Pension Act, and Private School
Teachers' Pension Act are excluded from the National Pensions Act(Art.6 of
the act.). In capitalist society it is inevitable to have an enormous
income gap between the classes of the very rich and the very poor, and the
pension act is a tool the state uses to redistribute the wealth of the
society and to transfer uneven income from one class of people to another.

The subscribers to the national pension are largely institutional
subscribers, continuous option subscribers, and the regional
subscribers(Art.7 of the Act). The worker and management of an
establishment employing more than 10 regular workers automatically become
the subscribers to the national pension. But the day laborers whose term of
engagement is less than three months, workers on a short term contracts.,
workers holding temporary positions, or working on a part-time basis are
all excluded from the automatic application cases. The pension premium of
the institutional subscribers are a shared responsibility between the
workers and the users, but the subscribers of continuous option plan or
regional plan are to pay the pension premiums fully on their own.

The allowance made by this act are the old age pension, the disability
pension, the survivor's pension, and a lump sum repayment. The equation
used in the calculation of the pension is: basic annuity   allowance +
dependent annuity.

However, the National Pensions Act was built on the traditional assumption
that the husband has the responsibility to support his wife and children.
Therefore, for a woman to have an access to the benefits of the pension
system, she herself has to enter the labor force and become a subscriber,
or has to have a husband as her supporter. Such traditional assumption is
materialized in the application of the survivors' pension and the dependent
pension payment. In other words, the dependents allowance, an additional
allowance, is quite like a family allowance in nature, paid to the
dependents supported by the recipient when he(or she) purchases the right
to the pension(Note: The dependent pension allowance was adjusted by 31.2
percent of the national consumer price fluctuation rate based on the
benchmark of 1988 price and since April, 1990, the spouse is receiving
67,920 won per year and each parent and child 40,750 won a year.). The
eligible dependents calculated into the pension payment allowance are the
spouse(including common law spouses), children under 18 years of age or of
grade 2 and above disability(parents of spouse included). Because of such
characteristics of the dependent allowance, it is not granted when both the
man and wife are recipients(subscribers) it is not granted to working
couples(Clause 2, Art. 48 of the Act). The same holds true when the
eligible children or parents are subscribers of the pension. The payment of
dependent allowance terminates when the support by the recipient is
discontinued or when the spouse divorces the recipient. Here it is clearly
demonstrated that the dependent allowance under the current law is to
protect a specific type of family that consists of one male breadwinner,
his economically dependent spouse, their children, and parents, and that it
does not protect other types of families such as the families of divorcees,
of single persons, or of working couples.

The survivors' pension allowance in the meantime is paid to those whose
livelihood was dependent on the subscriber at the time of his or her death,
and it goes first to the spouse of the deceased, then the children under 18
or above grade 2 disability, and then the parents over 60 or above grade 2
disability(parents of spouse included). Next come the grandchildren under
18 or above grade 2 disability and finally the grandparents of spouse
included). Under the current act, the eligibility as a recipient differs on
the basis of gender. When the subscriber husband dies, his surviving wife
as a spouse receives the survivor's pension without any pre-condition. But
when the husband is survived by the subscriber wife, there are conditions
for him to become the recipient. He has to be either over 60 years of age
or above grade 2 disability to be eligible to the pension. However, when
the recipient of the survivor's pension remarries, the title to the pension
is terminated. When the surviving wife under 50 years of age separates
herself from her children or sets up a separate household after receiving
the pension for more than 5 years, the allowance is temporarily suspended
until she reaches 50. And when a surviving daughter or a granddaughter gets
married, she loses her title to the pension(No.4, Clause 1, Art. 65) is
eradicated. All these regulations regarding the payment of the survivor's
pension have been devised on the assumption that first men are economically
self-supporting until the age of 59 while women as unpaid home workers are
considered economically incompetent to support themselves, even if a woman
is able to support herself, her ability to work only until the age of 49,
is presumed. The second assumption at work here is the patriarchal view of
marriage in which men are the breadwinners and women are the responsibility
of breadwinners. Therefore, when a woman marries or remarries, she becomes
the charge of the breadwinner(husband) and is no longer in need of
survivor's pension payment. But, when a man marries, he is understood to
have one more mouth to feed and his title to the survivors' pension
remains. Third, under the current rules of the pension when the surviving
spouse is the husband, or retains the eligibility to these pensions. But,
the contribution of the other spouse, the wife, (her share as home worker
in the marriage, for instance) is not taken into account(Note: The U.S.
Supreme Court ruling since 1975 has been that more favorable social
security payment provisions toward the surviving wife than toward the
surviving husband by the Social Security Act violates the right of the
people to be equal on the ground that these provisions are the embodiment
of the old-fashioned stereotype notion that women's place is in the home
and in raising the children rather than in consideration of women's shaky
economic position in the society (For further reference on Supreme Court
rulings confer Yoon Hoo-jung & Shin In-ryung (1990), op. cit.,
pp.281-284.)).

This traditional idea of family support is unfortunately alive and well
and again reflected in the National Pension Administration Rules, so that
in the Recognized Family Support Line-up, the man is designated to be the
first in line of family support. The current Family Law too in principle
imposes on the husband the responsibility to meet the cost of living for
both himself and his wife(Art. 833).

(Table-9) The Classification of Day Care Facilities
--------------------------------------------------------------------------
Classification   Name       Founder            Founding         Size
                                                Procedure
--------------------------------------------------------------------------
Facility       House of   State, Local Autono-  Autorization   More than
Care           Children   mous Entities, Social                30 Regular
                           Welfare Corporations,                Children
                           Juridical Foundations                 Nurtured &
                                                                 Educated
--------------------------------------------------------------------------
Home Care     Play Room    Individuals, Organizat- Declaration  Between 5
                            ions                  
신고
Posted by KWWA
A Study of Systems for the Settlement of Sex-discriminatory Employment Disputes
kwwa  2002-10-28 15:20:20, 조회 : 407

A Study of Systems for the Settlement of Sex-discriminatory Employment Disputes / by Elim Kim /Women's Studies Forum. Vol.9 / December 1993

* This paper is the condensation of the 1993 Research Report 200- by KWDI research team Kim Elim, park Kyun-mee.

Kim Elim(Senior Researcher, KWDI)

I. INTRODUCTION

1. Purpose and Background of the Study

Legal guarantees assuring equal rights before law for every individual and quality between men and women have been in effect in the Constitution of Korea ever since 1948.

As is stipulated in the Constitution, those concepts concerning equal rights of both sexes are more distinctly materialized in the Labor Standard Act enacted in 1953. As its basic principles, in particular, and employer shall not discriminate against employees by sex(Article 5). This principle is by putting an emphasis on the enforcement of punishing clauses for offenders as well as nullifying the act committed by them as illegal.

However, Article 5 of the Labor Standard Act had virtually remained a dead letter until one of the female telephone operators in service of the Korea  Telecom raised her grievances on January 1983 over unfair treatment in  terms of retirement. The KT set an age limit 12 years below that of male  workers, so she filed a suit to the court asserting that the KT committed  an illegal act against both the constitution and Article 5 of the Labor  Standard Act by treating the sexes unequally.

In fact, this labor dispute was regarded as the first incident to erupt in connection with unfair sexual treatment in the field of employment since  the enactment of the Labor Standard Act about 30 years ago. It is a widely known truth that not an employer has been punished over the violation of  the Act for the past 30 years. During this time women workers have suffered from unequal treatment in labor terms and conditions such as hiring, wages,  disposition, education and training, promotion, retirement age, resignations, lay-off and other various courses of employment. There has  been an extreme lack of administrative monitoring of the position of women workers from the concerned government authorities and also no lawful accusations, no practical applications of laws to protect women from unjust  treatment and so on.

After this incident, women came to realize the importance of a labor conflict resolution system along with a legal system guaranteeing the  rights of a life worthy of human beings, employment and equality. This became the issue of women's labor movement to be solved since the later  part of the 1980s. The result of these women's great endeavors was well reflected in the establishment of section 4, Article 32, a provision stipulating prohibition of discrimination against women in recruitment,  wages and labor conditions for the purpose of securing equal rights between  the sexes more concretely in the revision of the Constitution of the 6th Republic of Korea. The equal Employment Opportunity Act(EEOA) was also enacted in December, 1987 and the supplementation and revision of the above  Act followed in April, 1989.

Five years have passed since the enforcement of the Act. As a consequence, conflicts with regard to employment disputes happen more frequently spurred  by the enhanced consciousness of women workers toward keeping their rights  and sexual equality in social activities.

However, because of managerial inefficiency to enforce make these laws for the resolution of disputes related to sexual equality in employment, and  because of ignorance of related laws concerning women workers, the  Employment Problems Mediation Committee established as an administrative  body to resolve labor disputes on sexual unequality almost remains  stagnated. Legal stipulation and its operation has revealed only many of  problems for realizing equality between men and women.

Therefore, the research aims to achieve the following ; to expedite the active use of a dispute resolution system and to find out a more effective  system of realizing equal opportunity and treatment of workers in general.

The purpose of this study is contained in the following objects and basic substances ;

  a. Identification of conditions of present systems concerning employment dispute in relation to sex discrimination in order to effectuate the rights  of women workers an to find favorable remedies, together with an effective  process of approach supported by the through understanding of what sort of  lawful systems are available.

  b. Analysis of the cases of the practical use of systems by women workers after the enactment of the Equal Employment Opportunity Act

  c. Analysis of the realities of disputes by administrative and judicial systems after receiving applications for the solution of sex discriminatory  conflict

  d. Grasping the problems of operation and utilization of the present system

  e. Analysis of the related systems of advanced foreign countries

  f. Suggestions of directions for the improvement of systems so as to guarantee more assuredly the realization of sexual equality in employment.

2. Definition of Terms and Scope of the Study

The term ‘employment disputes based upon sexual discrimination’in the research is defined as one of conflicts between labor and management  derived from discriminatory treatment for the reason of sex. ‘Settle ment  system of the sex-discriminatory employment disputes’ is defined as both  administrative organs and judicial organs solely engaged in dealing with sex discrimination problems among the present administrative and judicial  systems of the resolution of disputes in charge of dealing with the disputes over the violation of rights. The labor unions and the Complaint Settlement Committee in charge of autonomous settlement of disputes and  relief function of rights were included in the category of settlement  systems.

This study was focused mainly on the sex-discrimination issues related to discriminatory or disadvantageous treatment of women compared to men for  reasons such as marriage, pregnancy, child-bearing or merely being women.  Disputes over application of the regulations such as menstruation leave,  maternity leave, childcare leave, and maternity protection was excluded  from this study as they are planned to be undertaken on some other occasion  under a different category.

3. Method of Study

The research includes the following :

(1) Analysis of related legal documents home and abroad

(2) Collection and analysis of the cases and case studies related to the practical use of the resolution system of disputes during the period  between April 1988 and December 1992

(3) Interviews with standing committee members in the service of the Local Employment Problems Mediation Committee and Labor Inspectors in charge of  tasks related to women and youth of the Local Labor Office in six major  cities such as Seoul, Pusan, Inchon, Taegu, Kwangju, Taejon.

II. PRESENT CONDITIONS AND PROBLEMS OF THE SYSTEMS IN KOREA

1. Overview

EEOA contains special administrative procedures for the resolution of disputes aiming at creating autonomous resolution of disputes when they  occur between employer and women workers according to the rules and  regulation stipulated therein. In fact, Chapter 4 of the EEOA stipulates  the three following stages for the settlement of disputes linked with  sexual discrimination :

(1) Autonomous resolution between concerned parties by means of bodies(the Complaint Settlement Committee) (2) Advice, guidance and recommendations by  the Local Labor Office through (3) Mediation taken by Employment Problems  Mediation Committee.

However, these procedures are not necessarily enforced. Women workers to condemn their employers be provided with administrative guidance through  Labor Inspector, prosecution or through legal action according to the  procedures of civil or penal codes instituting lawsuits to the courts and  can also lodge a complaint with a labor committee in order to be cleared of  any unlawful dismissal from their job.

As is shown in the above, the resolution system of employment disputes based upon sex-discrimination in our country can be characterized as  follows :

(1) Based upon the autonomous settlement of the disputes, the systems of the various administrative bodies and judicial resolution of the disputes  work together.

(2) Labor disputes are usually resolved by the ordinary judicial organs because of no labor court set up exclusively for this purpose.

(3) It is obligatory for employers to bear the burden of proof in setting a dispute in relation to EEOA.

(4) Public officials and school teachers are disposed of according to other separate resolution systems.

2. Basic Structure of Systems and Their Realities of Operation

A. Operational Realities and Structures of the Systems for Autonomous Resolution of Disputes within Business Enterprises(industries)

Present autonomous systems for the resolution of disputes include the following :

(1) Resolution of grievances by Employer and the Complaint Settlement Committee based upon the EEOA (2) Disposal of complaints performed by the  Complaint Settlement Committee according to the Management and Labor  Council Law (3) Collective bargaining labor-management contracts between  employer and workers.

B. Operational Realities and Structures of the Systems for Administrative Settlement of Disputes

The relevant systems include the following :

First, as the relief systems of rights at the regional labor authorities, there are :

(1) Counselling of civil service (2) Investigation and disposal of the appeal by labor inspector according to the Labor Standards Act (3) The  support for the settlement of disputes by the local labor authorities  according to the EEOA. Second, investigations and mediation by the  Employment Problems Mediation Committee. Third, order to change and  supplement labor-management contracts of the administrative bodies. Fourth,  disposal of the unfair lay-offs by the labor committee.

C. Operational Realities and Structure of the Systems for Judicial Settlement of Disputes

As the judicial systems, there are :

(1) criminal lawsuit to punish the person committed sex-discrimination (2) civil suit against the violation against equal rights (3) administrative  litigation for the reason of the insubordination of the verdict of the  Central Labor Committee

3. Analysis of Cases with Practical Application of the Systems

A. Objects of Analysis

In order to examine the application of the present system of settlement of disputes to actual cases, the research collected and analyzed cases  occurring during the period since the enforcement of EEOA from April 1,  1988 to December 1992.

Accordingly, those cases which ended merely with an inquiry and counselling by the consulting centers were excluded. Data collection for  the cases was made through personal interviews with those organs such as Local labor Offices, Employment Problems Mediation Committee, Korea Women's  Association for Democracy and Sisterhood, Korea National Council of Women  together with collection of all possible materials as reference documents  including newspapers, letters concerning resolution of complaints by Local  Labor Offices, final decisions made by the Labor Committee, verdicts of law  courts, various documents used in making lawsuit petitions, indictments, and accusations by women workers.

Thirty-two cases were collected in this study and categorically classified. Four cases were of sex-discrimination from employment  opportunity, two cases concerning education training, job disposition, or promotion, four cases of wage matters, sixteen cases of lower age limit for  women, lay-off, dismissal and forced retirement for reason of marriage, and  six cases were of lowering labor conditions because of marriage.

B. Cases Classified by Practical Use of the Systems

1) Administrative and Judicial Disposal Done by Local Labor Offices

As was shown in the Collection of data for case studies, petitions sent to the Ministry of Labor and Local Labor Offices represented a total of 21  cases. Fifteen of these cases met with administrative disposal by Local Labor Offices and 3 cases dealt with judicial disposal while 2 cases still  remained pending.

From the viewpoint of administrative disposal, 7 cases were settled between employer and women workers by accepting notice of correction issued  by the Local Labor Offices, 4 cases inquired of the Employment Problems  Mediation Committee for intervention, 2 cases were put to administrative  guidance in order to urge execution of a relief order carried out by the  Labor Committee and 2 cases of petition were renounced totally or  partially.

Regarding judicial disposal, 2 cases were taken as non-response from employers to the directives made for correction from the Local Labor  Offices, 1 case was dealt with as employer's default against Labor Committee's relief order, 3 cases were sent off to the Public Prosecutions  Administration under an accusation made by Local Labor Offices.

Cases of organizations offending regulations and rules and becoming objects of prosecution amounted to 7 cases in universities, 4 related to  government financial institutions and 2 cases in banks, one in a press agency and 7 cases in other industries.

2) Mediation Carried out by the Employment Problems Mediation Committee

It was proved that in only 2 cases disputes had been settled amicably between two parties in accordance with the draft plans prepared by the  Mediation committee under the request of Chief of the Local Labor Offices. The 2 cases were incidents regarding the lay-off of women workers after  marriage in Taejon and Inchon cities and taken care of by each Local Employment Problems Mediation Committee respectively. These two women  workers returned to their workplaces 16 days after lay-off since their applications came to the consideration of the Mediation Committee for the  solution of unfair treatment.

3) Administrative Relief Carried out by the Labor Committee

Occasions of women workers lodging complaints with Local Labor Committees about unfair treatment such as dismissal, lay-off or transfer because of  marriage or pregnancy amounted to 7 cases.

One case out of 7 regarding appeals made by women workers was rejected by the Local Labor Committee for consideration. The rest were resolved by the Committee with the decision that unfair acts of dismissal were committed by  employers based upon sex-discrimination. These women returned to their  former positions.

All the verdicts confirmed by the Local Labor Committee came up to the Central Labor Committee due to the dissatisfied employers' formal  applications for the renewal of examination of the cases. The above one  case rejected for the consideration by the Local Labor Committee was to  tread the same course.

However, none of the cases reverted to the former state against the decision made by Local Labor Committee and only one case was still under  examination. Two cases made futile administrative lawsuits to the court by  dissatisfied employers who took an action by dint of objection to the  Central Labor Committee's decision.

It took two or three months for the final decision to be made from an application of unfair dismissal to Local Labor Committee.

4) Directives to Change Collective Contracts by the Administrative Authorities

There was one case in which the government administrative authorities ordered of the collective agreements issued through the consent of the  labor committee to be changed or supplemented in order to satisfy the request of victims of sex-discrimination. These changes or supplements  would also apply to the conditions of labor-management contracts which were  considered to hold some regulations prohibiting sexual equality.

5) Public Prosecutions Administration and Criminal Court

There were 3 cases in which employers were accused by women workers who claimed they were being treated unfairly due to sexual bias. These cases  were taken to the Public Prosecutions Administration and punished by the  court.

Two out of the above three cases were given a Summary Court verdict to make payment of one million won as the penalty against their misconduct in  dealing with sexual equality stipulated in law. The other case involved an  occasion in which an employer was forced to make payment of 3 million won  as a penalty charge by verdict of a criminal court after having been  indicted by collective accusation raised by about 30 women workers holding  grievances over unlawful treatment by the employer on terms of age limit.

6) Civil Action

The number of cases of women workers desiring to solve employment disputes based upon sexual discrimination through civil procedure amounted to five.

Three of these cases involving the regulation of identical wages for identical labor (Article 6-2 EEOA) were about women workers who claimed the  payment of the differential between the wages of men and women.

The other two cases were ones claiming approval of the nullification of dismissal suits filed by women workers who had been dismissed when they  played leading roles in protesting unfair treatment in wages and promotion  problems between two sexes in a group.

None of the 5 cases of accusations by women workers in common-law actions ended in favour of the complainants except one case regarding a suit for  the approval of the nullification for dismissal. The rest were turned down  at the first trial and through second trial in succession in the courts  respectively.

III. DIRECTION OF REORGANIZATION AND PROPOSALS FOR THE PRESENT SYSTEM IN KOREA

1. Fundamental Direction Towards the Reorganization

A. Reinforcement of Autonomous Settlement Systems of Employment Disputes and Probing into Active Participation of Labor Unions.

In the case of sex-discriminatory problems happening in the workplace, it is regarded most desirable for women workers to solve problems between  employers and workers collectively through autonomous ways if possible  without allowing third party intervention. Then they can have their sexual  equality problems settled successfully in their workplace.

One of the reasons for the above explanation is that present administrative or judicial system for dispute settlement has many problems  in its own operational system. The settlement of disputes carried out by  the administrative or judicial office, women's circles, mass media or other  organs is considered very weak in its effect because their assistance is  quite limited in nature and is transient and superficial in solving roots  of problems.

Along with the possibility of many disadvantages to women workers such as job dispostion, transfer, promotion, task distribution from the employer,  furthermore the occasion will occur of being reprimanded by fellow workers  for reasons exploding problems of the workplace and difficulty of job  adaptability.

Although these reasons can be attributed to a lack of the sense of equality between men and women from both employer and fellow workers, the  more import and substantial problems regarding sex-discrimination might be  understood in the subordinate relationship of the user of labor and then  through the distribution of power between employer and women workers.

Therefore, it is recommended that the problems be solved by searching out ways for improvement through negotiation with employers, by forming firm  unified collective action and by sharing sympathy for the problems of women  workers. The problem of sex-discrimination should be solved by the strong  support of labor unions which are regarded as independent systematic organizations existing for the benefit of workers and by the support of  women worker's sororities organized in order to avoid the solutions of the  problem by dint of person to person negotiation measures.

Discrimination problems are easily doomed to end in partial or temporary solutions instead of substantial solutions of a permanent nature as long as  women are trying to depend upon external help without creating solidarity  among themselves with lack of independent capacity. This tendency is apt to  give rise to splits within the internal organizational system and forcing  women workers to discontinue their job life caused by losing amicable human  relationships in the workplace.

However, the rate of entry into the membership of labor unions by women workers is still considered low ; also, many workplaces still have not  formed labor unions. Moreover, it is hardly possible to say that even in  the existing labor unions they are dedicating themselves to settle the  sex-discrimination for women workers by strong leadership. There has not been sexual equality achieved even through the labor union itself to adequately deal with the matter as a first priority item.

With this background, it is inevitable that these women workers who claim to have been mistreated by sexual discrimination will resort to external  help for the solution as they are in danger of facing disadvantages in the workplace or to be isolated from both employer and worker.

Accordingly, it is important to expand the number of women cadre members to as many as possible to take part in the decision-making process in order  to put the important issue of sex-discrimination between men and women into  the collective bargaining of labor unions and other activities.

However, it is undesirable to force the problem by using legal systems. Instead, they must try to probe the counter measures more actively with  regard to women workers' problems in the labor unions, and to increase the  opportunity of women's participation in the activities of labor unions  since they have the right to constitute part of the internal organization  or forms of the system itself without the intervention of employers and government. They should be considered an independent body of solidarity for  the improvement of labor conditions for workers.

It is viewed to be necessary only to encourage the supplementary systems as an inducement for women and their employers to take part actively in the solution of women workers' problems and sex-discrimination.

B. Intensification of Fundamental Elements in the Dispute Resolution Systems

1) Strengthening of Specialization and Fairness

Legal meaning of the request to the administrative or judicial organs for the solution of women workers' problems is to seek the judgment of those officials given the legal authority for these solutions. If we view officials in this light, their sense of value and their level of understanding are considered a significant influence on the direction of solving disputes. As appeared in the research report on the workers' attitude by the Center of Human Right for workers, most workers have high distrust of officials in their fairness and special knowledge regarding the settlement of employment disputes.

In order to solve such problems, measures are suggested as follows ; (1) enforcement of educational training for the officials (2) active participation of representatives from both management and labor in the process of resolving labor disputes.

In detail, first, educational training for special knowledge regarding labor problems should be expanded aggressively in law school, the institute of judicial training, and the educational facilities for government officials. It is considered very important that labor law should be taken up as a compulsory subject in the employment examination of the government officials. In particular, it is extremely important to educate those officials in charge of law training related to women's labor problems.

Secondly, it is difficult for officials to give professional judgements on various practical occasions, such as conflicts between management and labor, personnel management, group bargaining and agreement, in spite of the knowledge of labor problems they may have. In order to supplement this knowledge, well-experienced representatives of both sides should participate actively in the process of probing and making judgement.

It is due to these necessities that no professional judges take part in the process of judgement with the representives from both management and labor at labor courts in England, Sweden and Germany.

2) Enforcement of Speed, Simplicity and Economical Efficiency

Workers have no other means to live on except their own working power even in poor financial conditions. Due to a lack of professional knowledge relating to laws, they are also quite restricted from utilizing the dispute resolution system. They are subordinate to the directions of their employers.

It is inconvenient for the workers to use various dispute organs, such as Labor Committee, Ministry of Labor, Public Prosecutions Organization and Law Court, because the hours of these organizations overlap the workers' hours. Also, some facilities like Employment Arbitration Committee are established only in the large cities.

Therefore, the procedure should be done rapidly under the employer's responsibility by brief investigation of the evidences of disputes and should allow workers to utilize even public holidays or night time for this purpose. The lawsuit should be fixed at a low cost and also be carried out in a convenient way without hiring an attorney.

C. Establishment of Exclusive Systems for Resolution of Women Labor Disputes

It is necessary to set up administrative and judicial systems which could manage exclusively the women worker's disputes in this society. There are no exclusive systems established for women workers' problems and sexual discrimination except the Employment Arbitration Committee in an administrative organization and the complaints management center as an autonomous conflict resolution system.

We find that the problems of women workers have not been handled as an important matter, but as a secondary matter in the Public Prosecutions Administration Law Court, Labor Committee, Ministry of Labor. As a result, it is impossible to find such problems as the regular items in the various sorts of statistics or even in the regular achievement reports issued by concerned authorities.

These officials, namely, Labor Inspector and Industrial Counsellor from Ministry of Labor and professional staff from Employment Problems Mediation Committee have told that it is hard to manage exclusively such problems due to the burdens of their main work.

2. Suggestions and Directions for Reorganization of the Autonomous Dispute Resolution System

A. The Establishment of a Committee to Realize Sexual Equality(tentatively named) in the Industries

1) Reasons and Background for the Establishment

According to the Equal Employment Opportunity Act, the complaints management center as an autonomous conflict resolution system is totally dependent upon a business owner's discretion for its establishment as well as for its management. Also, in case of an owner's refusal of implementation, it remains out of sanctions by the law.

Although the establishment of the Committee members by the Labor Management Council Law is compulsory, it is restrictive and nominal on many occasions. It is impossible to expect a favorable dispute resolution, since representatives from the women workers are not guaranteed participation and the number of the Committee members is not same between labor and management.

It is most desirable and effective to resolve problems through group bargaining and agreement, though the labor union doesn't deal actively with such problems as inequality in sex.

2) Purpose and Plans of Establishment

This study hereby suggests to constitute a committee to Realize Sexual Equality, as a tentative name, with the same number of the representatives from labor and management and that this committee be established on a permanent basis in the industries.

The committee should constitute representatives from the labor union and the owner, and include a majority number of women representatives elected by workers in the industries where a labor union is not organized. This Committee must hold a regular meeting at least once a quarter in order to survey sexual equality independently and make plans for effective realization. This also must be included in the group agreement in the industries where labor union is already organized. If the labor union is not organized, it must be put in the employment regulations.

All the complaints caused by sexual discrimination such as inequality in promotion, retirement, etc. as well as unfair treatment for reason of pregnancy and delivery of women workers should be dealt with by this Committee in order to respond quickly to them.

B. Preparation for Independent Check-up and Report System for Sexual Equality

1) Background of Arranging the System

Article 20 of the Equal Employment Opportunity Act reads “For the enforcement of this Act, Minister of Labor shall be authorized to force and owner to report the matter necessary and provide to coordinate, guide and advice.”

According to the Labor Standard Act labor inspectors are given authority and the obligation to check that the Act is enforced in the workplaces.

Due to drastic shortage of inspectors, workplaces containing less than 300 workers are almost not reached by administrative supervision. It is distinctly impossible to seek supervision for the solution of sexual discrimination, because one supervisor has to control more than 200 industries and has little understanding of such problems.

Therefore, it is necessary to find out effective measure for supplementing the deficiency of labor administration and realizing the sexual equality in dependently.

2) Purpose and Plans of the System

To supplement effectively administrative supervision according to observance of the EEOA and to increase the interest and understanding of the Act between labor and management, the system of independent checking and reporting as used in Japan and France are recommended fully for Korea.

Distributing an Independent Check List to Realize Sexual Equality (tentatively named) arranged by Ministry of Labor to be sent every industry, would demand that employers examine the situation of sexual equality quarterly or every year and prepare reports on the disposal of complaints and on plans for sexual equality. It is considered necessary that the Local Labor Offices who will obtain these reports will provide proper administrative guidance for the Labor Inspector in charge. By establishing this system, the Article 20 of Equal Employment Opportunity Act will be actualized.

3. Suggestions and Directions for Reorganization of the Administrative Dispute Settlement System

A. Enlargement and Reorganization of the Employment Problems Mediation Committee

1) Background of Reorganization

The present system of administrative dispute settlement by mediation is not for realization of proper equal rights of workers, but for settlement of the dispute with some degree of compromise and yield from both sides. So it is regarded as not desirable in the settlement of sex-discriminatory disputes involving the violation of equal rights without intensive governmental intervention.

It is inconvenient that workers should have to submit complaints through the head of the Local Labor Offices and that the Committee is located only in Seoul and other large cities under government's direct control. It is also troublesome that full-time professional staff of the Committee have no legal authority needed for their work of inquiry.

Therefore, measures are needed for more active administration dispute resolution. In particular, we need to administrative dispute settlement system to supplement the current judicial system. Without the Labor Court we could have a more economical and simpler system in this country.

2) Direction of Reorganization

  a) Reorganization toward a Quasi-Judicial Organization(Way 1)

The establishment of a Committee to Realize Sexual Equality(tentatively named) in every local labor offices is suggested for the effective reorganization of the current Employment Problems Mediation Committee.

When the labor union and women workers make an application for the sex-discriminatory problems to the Committee, the staffs of this committee would examine the documents and the workers' concerns in the workplace, and let the Committee organized by the employers, workers and the public give a decision according to the report. This research suggests that the Committee should be reorganized to have legal authority for directive orders of correction or reinstatement in case of sexual discrimination.

So, it would not be necessary to follow the current system of administrative dispute settlement by mediation if such an independent process of resolving disputes could be established as well as systematic help arranged by local labor offices. Moreover, if this described committee could be set up, such process of mediation will be of no use.

This plan of reorganization towards the quasi-judicial system is already favored and proposed by many concerned officials.

  b) Supplementary Plan for the Present System(Way 2)

These plans of reorganization have the following problems ; Firstly, if opposes to the final decision by Committee to Realize Sexual Equality, those concerned persons must go to the higher court for their administrative litigation as a second step.

Secondly, if  labor court is to be established for the solution of labor disputes, the quasi-judicial system in the administrative organization is not necessary.

Together with these questions, there are some cases possible which are regarded very hard in drawing out judgement on sexual discrimination, and in which women workers themselves want to be in the service of industries by amicable solutions without creating emotional confrontation between labor and management through mediation of disputes.

And the occasion may occur in which measures of mediation of disputes are considered necessary in practice. It is known that administrative measures for mediation of disputes are carried out as a first step in such nations as the U.S.A., England, and Canada.

It fact, there are many weak points to supplement in the current system. So this researcher hereby suggests that concerned persons should be allowed to use this system directly in case of inability of autonomous conflict resolution, and that full-time staffs should be given to the suborganization and given authority for efficient conduct. Also, the Committee must be set up in every Local Labor Office.

Although only two cases have been solved until now, it is desirable and recommendable to use more positively this system taking advantage of simple procedures of only 16 days, duration and of workers' own fine adaptability to their workplace without emotional confrontation between management and labor.

B. Expansion of the Women and Children Section into Women's Labor Bureau in the Ministry of Labor

1) Background of Expansion

The women and Children Section under the control of Labor Standard Bureau, at the present, receives operational direction of the director of Labor Standard Bureau and works with operational cooperation of the Women Counsellor.

The Labor Standard Bureau consists of the Labor Standard Section, the Wage and Welfare Section and the Women and Children Section. According to rules on the organization of the Ministry of Labor, the Women and Children Section shall take charge of the following matters ; improvement of working conditions, protection and guidance of working women and children ; survey of actual conditions, matters concerning status improvement and welfare promotion of working women and children. It is also responsible for establishment and operational direction of the Working Children's Hall(Article 14, section 5).

In taking charge of works related to the observance of the Labor Standard law, some functions of the Labor Standard Section inevitably overlap with those of the Women and Children Section.

As the public official in the general or special service, the Women Counsellor shall assist the Vice-Minister of Labor in the following matters : special protection for working women and children, cultural and educational guidance for working women, guidance and enlightenment of workers' family planning projects, and matters concerning promotion of workers' cultural activities(Article 9). The Women Counsellor is under control of Vice-Minister and of no suborganizations.

Considering the present situation, the operation and status of the Women Counsellor are equivocal and the Women and Children Section is not in general control over women's labor problems.

2) Purpose and Plan of Expansion

In order to conduct women's labor problems efficiently and systematically according to long and short-term plans, and to place political emphasis on the administration related to women's labor problems, it is quite desirable to promote the Women and Children's Section into a Women's Labor Bureau in the Ministry of Labor.

Women's Labor Bureau in the Ministry of Labor should plan in long and short-term for sexual equality, welfare system and improvement of working conditions for women workers, and it should establish closer cooperation with other sections in the Ministry of Labor so as to carry out plans efficiently and systematically. The Bureau should also establish the chain of command as the superior office of the Women's Labor Section in Local Labor Offices.

C. Establishment of a Women's Section in the Regional Labor Office

At present, there is no independent post in charge of operation of women's and juvenile affairs, and no inspector engaged in such an operation in the regional labor offices. Instead, according to the organization arranged by Ministry of Labor, only one out of 13 paragraphs provided for partial charge of ‘labor inspection section’ in regional labor office, and listed as operation, such as special protection for women and juvenile workers, equal employment for women, promoting women's status, and improvement of sexual discrimination. (Article 31, section 3)

Generally speaking, labor inspectors belong to ‘Industrial Safety Division’, ‘Accident Compensation Division’, ‘Employment Management Division’, respectively, and usually take charge of more than 200 industries under their control. They perform labor inspection, provide relief of private(individual) rights relevant to working conditions and oversee collective labor affairs connected with relationship between management and workers. One inspector attached to ‘Labor Standard Division’ carries out the operation in a technical nature in addition to the regular fixed operations according to written directions from ‘Women and Minors Division’.

Under these circumstances, it is hardly possible to expect smooth performance in inspection and encouragement related to women's labor in connection with such fields as prevention and protection of sexual discriminations, relief of rights in sexual disputes, and observation of regulations set up for maternity protection.

In order to promote more effective consultations on the complaints lodged by women workers in such fields of activities as supporting dispute of settlement, relief of women's rights, administrative guidance, working out statistical review, supervision on observation of the current Laws conducted by industries in relation to the matter of equal employment for both sexes with finding realities, and provisions stipulated for the protection of women and equality for men and women in Paragraph 5, Article 5 in Labor Standard Act respectively, the need of the establishment of a Women's Section in the local labor offices is highly recommendable.

The Women's section of local labor offices as described in the above, is to receive operational directives from the Women's Bureau, Ministry of Labor and will carry out the operation of an independent system for the solution of disputes as depicted in the former proposal on the directions of reorganization. This can be done by giving out a check-list arranged by the Section and letting the employers present the reports related to the matters of practising equality between men and women and its practical plans.

Also, the Women's Section will include in its operational activities such matters as checking out the necessity of establishing a practical committee for equality between men and women and will urge the set-up of this sort of committee. It will supervise implementation for administrative guidance along with all regular operational activities stated in the  previous section.

D. Placement of Labor Inspector Exclusive in Charge of Women's Problems

No labor inspector on women's affairs was found in the Ministry of Labor and local labor offices. The work of labor inspector will include such activities as finding out wage situations, working hours, cases of dismissal, working conditions, industrial damages, collective bargaining, labor disputes and so forth, by the allocation of industries as a jurisdiction to be controlled.

Considering these realities, it is quite necessary to create an administrative system for women workers to provide more active supervision and guidance in relation to the problems of sexual discrimination in women's labor.

Accordingly, the establishment of a women's section in the regional labor offices is quite necessary with an appointment lf labor inspector in exclusive charge of women workers. Even though it is impossible to establish a women's section at the moment, the necessity of swift appointment of a labor inspector is extremely important.

Also, regular education programs for laws related to women workers and for the question of women workers must be worked out for labor inspectors as measures to promote operational activities.

E. Expansion of Women Labor Inspectors

Currently, the number of women labor inspectors is only 34 out of a total of 450 labor inspectors constituting 7.6% in ratio. Consequently, owing to the scant number of women labor inspectors, most operations concerning women's complaints have to be carried out by male inspectors. This indicates the impossibility for favorable solutions for the problems of women workers who occupy half the number of the total working class, since male inspectors are not suitable to understand women's problems throughly.

Therfore, in order to improve present realities and have the women's problems viewed, consulted and solved in terms of congenial sexes, large scale expansion of women supervisors should be created in the local labor offices.

4. Directions and Proposals for the System of Judicial Disposal of Labor Dispute

A. Establishment of Labor Court

The request for an establishment of a labor court to handle labor problems exclusively as a special court has been an age-old one. It has been expected that it is difficult to cause making relief in rights disputes and to carry out solution of problems suitably to meet the realization of worker's right by the usual operation of the existing judicial system.

The request for the establishment of a labor court comes out of the consciousness of inability of both current court and labor committees in making the suitable solutions for various disputes regarding workers' rights.

Precisely, first, because of time, money and the requirement of professional knowledge of law which usually occurs in trying to use the conventional court system for the solution of private workers' rights, the worker is forced to withdraw his complaint or develop the case into a collective dispute against his personal will.

Under these circumstances, the necessity for establishing a special labor court is strongly recommended as a tool for the handy and proper solution of workers' rights problems.

Secondly, collective disputes in defense of workers' right also involve costly expenditures and they require professional knowledge of laws. Relying on the conventional civil court for the dispute is prone to be changed by social situations and by the countermeasures raised by the other partner. This also requires establishment of a special labor court even for the means of avoiding settling current disputes by force.

Thirdly, we see in the occasion of current disputes, if cases involving disputes for rights are handed by coordination, arbitration and intercession, the litigants fear conceding their lawful rights during the procedure for reaching a settlement. It is suggested that since the procedures for settlement applied to the dispute for rights and dispute for benefits should be placed exclusively on labor committee while the dispute for rights must be worked out through the channel of a special labor court.

For this purpose, Korea General Federation of Labor Unions made a petition as to the direction of establishing a labor court to the National Assembly on July 1988, as well as a recommendation for the establishment of a labor court to the Chief Justice of the Supreme Court on July 24, 1991.

The petition in relation to the necessity of the establishment of a labor court and basic direction of legislation of law of labor court made by KGFLU was responded to favorably with the creation of mutually understandable area.

The proposals will be presented in this research with regard to the establishment and structure of labor court, and plans for its processes will be the same in prospectus and substances made by KGFLU in its petitions.

To sum up, by creating a labor court through legislation, the dispute for rights in workplace should be disposed of fairly and swiftly, and the kind of court brought about in two levels, local and appellate, will provide a structure to proceed to the judgement of the Supreme Court for final appeal.

The structure of the court would include representatives from the sides of management and labor who are well informed on the actual situation of working place as well as some specialists and professional judges.It is desirable that the expenditure of litigation should be arranged at low cost when needed for a concerned party and a proxy or attorney be entrusted with the law suit through the assistance of representatives from both sides of labor and management or labor organization itself. The term required for the final decision should also be shortened to that of a conventional civil trial. Also, there should be simplification of proving witnesses and enforcement of activation of circular court so that a trial could be performed even on such days as holidays or during evenings.

B. Establishment of Division in Labor Court Exclusive for Women Workers

Because of an inability to understand the substance and gravity of the problem of sexual discrimination that now exists widely in society, within judicial circles as well as in labor circles, women workers' problems are prone to be ignored. It is difficult to probe these substantial matters during the course of judicial judgement as they are entangled with other labor problems or apt to destroy the hopeful expectations towards the realization of women workers' rights according to as establishment of criteria from labor court discussions.

The importance of setting up an exclusive trial department for women's problems including sexual discrimination in the labor court is proposed in order to solve the disputes properly in consideration of specific character existing in the sexual discrimination, and the necessity for professional knowledge for women's problems.

The establishment of an exclusive trial department for women workers' problems in the ordinary court is regarded as also necessary, even though it is not possible to see the advent of labor court.

In this occasion, the system which allows women representatives to be participating in trials from the workers' side must be materialized in the creation of an exclusive trial department for women's problems.

REFERENCES

The Court Administrative Office(1992), Judicial Law Yearbook 1991

Center of Human Rights for Workers(1992), Report on Workers' Right, Seoul : Yeoksabipyung-sa.

Chung, In-soo and Chung, Byung-sok(1992), Study on Improvement Plan for System of Labor Inspector, Seoul : Korea Labor Education Institute.

Kim, Elim(1989), “A Study on Sex Equality in Employment Act,” Labor Law Studies, Vol 2, Seoul : Korea Labor Law Academic Society.

---(1991), Interpretation of Sex Equality in Employment Act, Seoul, Ministry of Labor

---(1991), “Problem of Equal Pay for Equal Work,” Substances and Tasks in Equal Pay Equal Work(collection from discussions), Seoul : Korean National Council of Women.

Kim, Kyoung-bae(1992), Labor Law, Seoul : Parkyoung-sa.

Kim, Jung-ban(1992), “Character and Task of Head of Trade Union,” Analysis on Labor Trend(3rd quarter), Seoul : Korea Labor Research Institute.

Kim, Tae-ki(1992), Study on Improvement Plan for System of Labor Committee, Seoul : Korea Labor Education Institute.

Kim, So-young(1991), “Unequal Employment of the Customary Practice in Korea,” Equal Opportunity for Employment and its Results, The Korea Legal Aid Center for Family Relations.

Koo, Soo-hwae(1992), Interesting Criminal Code, Seoul : I1jokak.

Korea Federation of Employers(1993), Labor Economy Yearbook 1992.

Korea National Council of Women(1990), Case Studies of Sexual Discrimination at Work.

Korea Women's Association for Democracy and Sisterhood(1991, 1992), Clerical Women at Work, vol. 5, vol. 8.

Korean Women's Development Institute(1988), A Study on the Retirement of Female workers.

---(1991), A Study on Laws Related to Women's Welfare.

---(1991), Case Studies on Discrimination against Female Workers.

Lee, Jae-sang(1991), Law of Criminal Litigation, Seoul : Parkyoung-sa.

Lee, Sang-kyu(1988), New Legal Litigation Law, Seoul : Pobmoon-sa.

Lim Jong-ryul(1985), Labor Dispute Disposal System in West Germany.

---(1988), “Improvement of Labor Dispute Disposal System,” contemporary Management and Labor (August 1988).

Ministry of Justice(1989), Law and Living, vol. 1, Seoul : Ministry of Justice.

Ministry of Labor(1992), White Paper on Labor, Seoul : Ministry of Labor.

---(1988), Women and Employment, Seoul : Ministry of Labor.

Park, Sook-ja(1992), “Campaign of Labor Union for Sexual Equality in Labor Market-from View of Actual Status for Women's Employment”(collection of discussion for women's policy 1992), Seoul : Korea Federation of Labor Unions.

Shin, Yong-ja(1991), Operation and Present Situation on Equal Employment in Advanced Nations in the World, Seoul : BPW Korea Club.

Song, Sang-hyun(1990), Civil Litigation Law, Seoul : Parkyoungsa.

Yoon, Hoo-jung and Shin, In-ryung(1992),Perspectives of Feminism on Law, Seoul : Ewha Womans University.

Yoon, song-chon(1987), “Administrative Relief and Punishment Against Illegal Labor Act,” Labor Law Studies, vol. 1., Seoul : Korea Labor Law Academic Society

---(1989), “Activation of Systematic coordination for Dispute”(collection of discussion), Seoul : KWDI
신고
Posted by KWWA
A Comparative Study Between International Treaties and Korean Labor Laws on Women
kwwa  2002-10-28 15:18:56, 조회 : 396

A Comparative Study Between International Treaties and Korean Labor Laws on Women / by Elim Kim
/ KWDI Research Reports /Women's Studies Forum, Vol.11/ December 1995  
  
* This paper is an excerpt and rearrangement of a joint study '94 Research
  Report 200-5, A Comparative Study on the UN and ILO's Treaties on Women
  and Korean Labor Laws for Women: Legislative Problems of National Law and
  Suggestions for Resolution conducted by the Institute researchers Kim
  Elim, Choi Yeon-hee, and Jang Young-ah.

- Suggestions for Legislative Strategies for Reorganization -

Kim Elim
Senior Researcher, KWDI

I.   INTRODUCTION

1.  Background and Purpose of the Research

    On September 17, 1991, South Korea became a regular member nation
of the United Nations (UN), an establishment aimed at securing world peace
and human rights.  On December 9th of the same year, South Korea also
joined the International Labor Organization (ILO), whose major activity
entails  preparing international  labor standards  in agreement  with
representatives of laborers, employees, and government, for the security of
human rights and fair competition.
    Accordingly, along with responsibilities  of submitting annual
reports on the implementational status of international treaties, the South
Korean government is obligated to approve UN and ILO treaties and to put
forth efforts to include the pertinent international laws into the ROK
national law code.
    From this situational standpoint, it can be inferred that South
Korea, where there are a myriad of conflicting points on contents in its
labor and management laws when compared with international labor standards,
is facing a transitional period where a revision of the basic framework and
contents of related laws is mandated.
    Furthermore,  in line  with the  recent  rapid trend  toward
globalization, the inauguration of the World Trade Organization (WTO) is
anticipated in January 1995.   With emergence of the  Blue Round(The Korean
Association of Administrators (1994), This is the Blue Round.), with its
aim of linking individual country's labor conditions to international
trade, preparations to adjust Korean labor laws to meet international labor
standards became an urgent task for the Korean government.
    When the  aforementioned circumstances are considered,  it is
compelling for both the national government and labor/management to conduct
a thorough  comparative analysis between the  pertinent international
treaties and national laws to identify conflicting problems, and thereby be
able to establish a strategic plan for approval of tactics and adjustment
of national laws that could lead the current national labor situation in a
progressive direction.
    The UN and ILO have been focusing on the issue of protection of
women's labor and their equal right to employment.  According to the
changes centered on women's labor, they have been changing or improving
international labor standards related to these issues.  The rudimentary
framework and contents of the Korean laws on women's labor, however, are
not up to par, with many aspects contradicting those of international labor
standards.
    The Gender Equality in Employment Act of Korea was promulgated in
December 1987.  Upon its establishment, there has been increasing opinion
for revision of regulations on women's labor protection set forth in the
Labor Standards Act that was established around  1953 and has been
maintained for four decades without change.  As a result, debates on
protection and equality which centered around the issue of women's labor
have gradually intensified.
    The Gender Equality in Employment Act, within one year of its
implementation, was revised in 1988 to strengthen its practicality as a
law. Nonetheless, due to the fact that it still lacks full effectiveness,
another revision has been discussed.  Furthermore, as new types of
gender-based discriminatory systems (such as new personnel policy systems,
sexual harassment at work, trends of irregular work given to women, and
sexual  discrimination  within  labor  unions)  have  emerged  since
implementation of  this law,  there is  a strong  demand for  this
discrimination to be regulated.
    Additionally, a petition for the revision of the Infant and Child
Care Act, which was prepared in 1991, has already been submitted to the
National Assembly for approval. Such efforts to put the labor laws related
to women in good order are the current agenda of women's labor policies and
the women's labor movement.
    On February 3, 1994, the government affirmed the First Phase of the
Basic Plan for Women Workers' Welfare, a plan considered as an overall
blueprint for women's labor policies that is to be supported throughout the
government during centralization of authority.
    The above plan has significant implications in two respects.
First, it has prepared the basic framework to systematically support
women's labor policies, which had been supported in fragments or in parts
only. Second, it is linked to an overall revision of the previous women's
labor policies and laws.
    This basic plan, however, is creating serious debate, because while
it is partially strengthening non-gender discriminatory equal employment
and maternity protection, in return, however, it attempts to moderate
female protection regulations, such as those regarding monthly sick leave.
A plan for a legal revision to support such moderation, which is the cause
of conflict, has already been devised.
    Furthermore, because the above plan has been reviewed only by
committees, such as, the Women's Labor Committee, the Coalition Committee
for Women's Policies, and the Administration Committee, and has not been
submitted for examination via orientations or hearings to the groups with
high interests in women's policies (such as management and labor groups or
women's organizations), the degree of the controversy has intensified.
    Therefore, with the above circumstances taken into consideration,
this dissertation aims to suggest two tasks to be accomplished as follows:
    First, clarify discrepancies between the UN and ILO's international
labor standards  and regulations  regarding non-gender  discriminatory
employment and the protection of women, and those of Korea via comparative
analysis.  Second, recommend method of adjusting Korean women's labor
laws--grounded on social agreement--that are appropriate to the current
circumstances, while having the principles of international labor standards
followed through in the meantime.

2.  Methodologies and Procedures of the Research

    This research has been conducted via diverse methodologies and
procedures. Examples include: research through references, discussions on
methods of revising the law with people from various segments of society,
analysis of statistics on the current women's workforce, study of law
implementational status according to classifications of occupation and size
of industries, surveys of the administration on opinions for legislature on
various societal sectors, seminars on research results, and holdings of
meetings for representatives of various disciplines (1995.5.31).

II. COMPARATIVE  BETWEEN INTERNATIONAL  TREATIES AND  KOREAN LABOR  LAWS ON
     WOMEN

1.  An Outline of the Treaties Related to Women's Labor

    Upon  analysis of  international documents  prepared for  the
protection of women's labor and equal employment for both genders done by
the UN and ILO, whose membership extends to a majority of nations in the
world, it was found that the principles of the women's labor protection
laws have been developed in three phases with each period having distinct
characteristics.
    The first phase began around the time the ILO was established and
ended prior to the beginning of World War II.  The second phase extended to
the year 1975, International Women's Year, from the establishment of the UN
after World War II. Finally, the third phase includes the years after 1975
up to the present.

    A. The First Phase

  On analysis fo international documents prepared during the period of this
first phase(During this period, major women labor-related articles
and recommendations  were selected.   They  include: joint agreements on
employment of women before and after delivery (1919, No. 3); women's night
work in industrial sectors (No. 4); recommendations on  protection for
children and  women against lead poisoning (No. 4); prohibition on usage
of lead in paint jobs (1921, No. 13); women night workers (1934); and
women's labor in mining (No. 45).), three main reasons for thespecial
protection of women could be found.  The first reason was because of the
idea that women, like children, are comparatively weak physically as well
as psychologically. The second reason was that females have the unique
functions of motherhood, such as pregnancy, child delivery, and
breast-feeding. The third reason, based on the viewpoint that females
possess the unique function of raising children and taking care of
household tasks, was to protect women's health and safety and to provide
time to work at home.
    To be more specific, during the early capitalistic era, which also
can be called a period of primitive capital accumulation, the women
workforce, as a way of cheap labor, was incorporated into the labor market
for sake of profit optimization. Women's labor taken into the market was
completely neglected under severe working conditions.  The reformulated
values mentioned earlier, in other words, emerged as a way toward the
solution for combatting problems at hand.
    Protection  of women  during this  period  had a  periodical
background--a view of value as the period for creation of labor protection
laws.
    To seek fair and legal differential treatments to different genders
in that period, not only their biological differences, but also the
characteristics of women's relatively weak physical and psychological
status, along with gender-specific characteristics in functions and role
divisions, were emphasized.  As a result, women's protection possessed
characteristics of morality and goodness; rights to labor and equal rights
as fundamental human rights, grounds for equal opportunities and treatment
according to one's aptitude and skills, were not acknowledged as the rights
of women.

    B.   The Second Phase

    The aforementioned principles of the protection laws for women
during the first phase began to be re-examined with the inception of the
United Nations after World War II.  With the UN's inception, the second
phase began and extended to the years before 1975, the International
Women's Year.
    Upon the establishment of the UN, the facts that women (one-half of
the world's population) faced discrimination  in employment and such
discrimination was an undermining factor to the peace and development of
the world (as well as to individual nations) were acknowledged.  As a
result, the ILO, which had been putting its efforts on women's protection,
transpositioned its major agenda to equal employment for both genders.
(During this period, the UN emphasized women's right to work and sexual
discrimination in the following documents: UN Charter in 1945, The
International Declaration of Human Rights in 1948; International Human
Rights Regulations in 1966; and Declaration on the Elimination of
Discrimination Against Women in 1967. The ILO also stressed equal gender
employment through joint agreement of equal value to and equal compensation
for labor in 1951 (No. 100) and the selection of joint agreement on
prohibition of discrimination in employment (No. 111).
    During this period, the subject of the scope of women's labor
protection laws--that could coexist with gender equality--was actively
debated. An exemplary case is the UN's 1957 deliberation process on child
delivery protection for the International Covenants on Economical, Social,
and Cultural Rights (Regulation A).
    Active debate was held in determining the length of the period for
protection of pregnant women who have a child-bearing responsibility.  The
debate of the membership nations was focused on whether the protection
period was to be extended until the child-raising and child-education
period or only to be limited to a set period during times when practical
labor cannot be performed by or is not comfortable for women due to
pregnancy or child delivery.
    Voters chose the latter option with an overwhelming majority
support. The underlying ground was that child-rearing is not solely the
responsibility of women but one for both men and women. It continued to be
asserted that support for child-rearing, as a result, has to be provided
for homes, not for women. The rationalization was that an overemphasis on
females' roles as mothers could be used for grounds of providing excessive
protection to women, which thereby could result in avoidance of hiring
female workers.
    On the agenda for protection of women, excluding the protection for
child delivery, Regulation A showed its stance to limit the target
population for the protection--from employment that could be dangerous or
harmful in aspects of morality, health, and growth, to minors and children
(Article 10), with exclusion of women.
    In 1948, the ILO moderated the Agreement on Protection of Women's
Working at Night even further (by expanding its exclusion population, for
instance) through a revision of the Agreement on Prohibition of Women's
Working at Night (1948). On the other hand, a revision of 1952's Agreement
on Child Delivery Protection  strengthened protection for pregnancy and
child delivery.
    Even during this period, nevertheless, the procurement of the
established idealogy of equal employment for both genders was incomplete;
still a traditional conception of women as protectees and the ideology of
gender-based role division were strongly maintained.  For that reason,
measures enabling married women workers (whose numbers greatly increased
since the 1960's) to maintain their lives both at work and at home were
acknowledged as important legislative tasks.
    Finally, the  ILO's Agreement  for Prohibition of  Employment
Discrimination (1958) announced that all previous regulations on women's
protection were not to be considered as gender discrimination (Article 1,
Clause 1); the UN's Declaration on the Elimination of Discrimination
Against Women (1965) ascribed supportive arrangements for child-rearing to
women only.

    C. The Third Phase

    International documents clearly state that during the third phase,
which began from the UN's declaration of the year 1975 as the International
Women's Year and runs to the present, two agendas have to be dealt with:
first, having the ideology of gender-free equal employment to eliminate
gender-specific role classification so as to guarantee an equal right to
work; and second, review of the laws for protection of women to accomplish
the previously mentioned first task.
    Such a switch on the part of the UN is based upon a theoretical
background.  The phenomenon of women's disadvantages and discrimination
(when compared with men) in employment opportunities and treatment is still
being practiced worldwide.  The UN asserts that the cause of such a
phenomenon's continuation stems from the  unity between the economic
principles  of capitalism  and the  theory  of skill-specificity  or
role-classification, which is integrately expressed as market labor for men
and house labor for women.
    So called "modern feminists" from diverse disciplines, who also
point out the aforementioned theory, assert that gender-specific role
classification defines women's roles at home as child-rearer, free workers
for house chores, and dependents on husbands for living.  This definition,
they continue, leads to separation of employment opportunities, work
contents, levels of jobs, types of work, and the compensation of women as
opposed to that of men. As a result, they argue, the dual burden of work
and home is laid upon women's shoulders. In the end, they conclude, women
receive gender  discrimination in employment  by staying around  the
circumstantial labor market (such as unavoidable early retirement, working
part-time, temporary, or low-level jobs), due to their responsibilities at
home.
    As a policy to resolve the problems pointed out above, a new
awareness for the creation of laws on working conditions, labor, and social
security has been formulated in international society. These laws have to
be  ones  that  are  able  to  change  the  traditional  economic,
social-structural, and legal conceptualization of women that are founded
upon gender-specific role classifications and allow joint participation and
responsibility of men and women in their lives at home, work, and social
activities.  Particularly, such laws have to be enacted by national
governments and industries.
    Followed by the UN's Action Plan for the World's Women in 1975 and
the ILO's Declaration on Women Workers' Opportunities and Equal Treatment,
the UN  specified in  its 1979  Convention on  the Elimination  of
Discrimination against Women that a revolutionary change in traditional
gender-specific role classifications is the fundamental principle for
gender equality.
    One step further, it regulated duties and standards of the nation
as an entity to realize legislation and implementation for equal employment
of both genders.
    As of 1992, this agreement has been approved by 103 nations. With
the premise that responsibility for the family has to be a burden shared by
both genders, the ILO selected the Agreement on Equal Opportunities and
Treatment for Men and Women Workers with Family Support Responsibilities
(No. 156) and Recommendations (No. 165), and decided not to use the
Recommendation for Employment of Women with Responsibilities for the Family
(No. 123).
    The  newly chosen  agreement regulates  prevention of  gender
discrimination in employment which may be caused by the responsibilities
for family, and supportive measures for the security of the rights to work.
    Additionally, re-examination of the pre-existing special protection
regulations on women workers has been achieved, in this third phase, by
classifying  regulations  into two  categories:  maternity  protection
regulations and general women protection regulations.
    First, it states that the fundamental difference between men and
women are only biological ones; maternity protection for pregnancy and
child delivery are caused from such biological differences and are actually
for the realization of gender equality.  Such protection, it continues,
also means protection of a social function for its creation for the next
generation's human resources.  Consequently, it concludes, such protection
has to be more solidified, and its expenses have to be shared jointly by
the nation, society, and industries at the level of social security.
    Second, it asserts that, excluding maternity protection, women's
protection is grounded on the women's role as an underdog or as people
responsible for house chores.  Therefore, it is essentially protection
based on social and cultural differences resulting from a gender-specific
group or general differences and typical conceptions and role expectations,
not on differences of essentiality between the two sexes.  Hence, it
states, such protection is to be moderated or abolished according to each
individual nation's progressive status of scientific technology.
    By the way, since its goal of re-examination, it warns, is for
the realization of gender equality and improvement of living conditions,
environment or labor conditions are not to be negatively affected.

2. Characteristics of  Korean Labor  Law on  Women and  Discrepancies with
    International Treaties

    Korea ratified the UN's Convention on the Elimination of
Discrimination Against Women on December 18th, 1984 and the International
Covenants on Human Rights on April 10th, 1990,  respectively. According to
the regulations on the Korean Constitution (Article 6, Clause 1), the
individual agreements and regulations of these international treaties were
given equally effective power (the Convention, from January 26, 1985; the
Covenants, from July 10th, 1990) to that of Korean national law.
    However the relevant regulations of the Korean national law had not
been put in accord with those international labor standards prior to the
ratification, however.  Consequently, there exist various aspects in
Korea's labor-related laws with regard to women that are in conflict with
international standards in regard to equal employment rights and women's
labor protection.
    The major conflicting aspects are as follows:
    First, the principle of gender equality and special protection for
women's labor co-exists in the Korean Constitution and Labor Standards Act;
they have been gradually solidified and maintained for about 45 years after
the establishment of the Constitution.
    Even though the Gender Equality  in Employment Act regulates
protection for maternity as not being grounds for gender-discrimination
(Article 4, Clause 1), its scope, however, is not clear.  Even supportive
measures for child-rearing, for example, are regulated as protection for
maternity.
    Such a legislative outlook could be  viewed as a thoughtful
consideration toward the reality of women's poor working conditions.
Nonetheless, it also clearly shows an aspect that is in conflict with the
principle of gender equality, because its underlying framework is based on
patriarchal values.  Especially, the Gender Equality in Employment Act is
based on  the view of  gender-specific role classification,  thereby
presenting confused characteristics regarding the Equal Treatment portion
of the Labor Standards Act and the Acts Related to Women's Welfare.
    Second, regulations on monthly sick leave (Clause 59) and travel
expense for home-coming (Clause 62) in the Labor Standards Act are unique
special protection regulations that cannot be found in other nations, other
than in Japan where they originated.  Particularly, menstruation leave with
pay is guaranteed only in Korea.
    Third, the ILO prohibits employing women for paint work that
requires handling paint  with lead elements, or any  work requiring
product-handling containing benzene, for the purpose of protecting women in
pregnancy and child-delivery.
    These two prohibitory regulations do not exist in Korea.  Instead,
simply six categories of work((1) Work dealing with high-voltage wiring and
related electrical machines and tools (No. 18).  (2) Work handling
vehicular transportation of logs with diameters of 75 cm or
more in diameter (No. 28). (3) Work in places with a danger of
the collapse of sand, or in underground tunnel with its depth
greater than five meters, with exclusion of assisting work on
the ground (No. 39).  (4) Construction or demolition of log
access-boards (No. 41). (5) Work that gives a severe vibration
to the body by use of a rock drill, for example (No. 49).  (6)
Work dealing with heavy materials, 30 kg for a short period and
20 kg for any extended period (No. 56).), considered severe physical labor,
are regulated as occupational hazards for women.  Categories prohibited
from employing women include mining, construction work, and manufacturing,
where mainly mechanization or automation is not implemented in operational
procedures (Labor Standards Act, Article 51, Implementation Order, Clause
44).
    Fourth, compared with the ILO's Maternity Protection Agreement (No.
103), Korean laws provide a considerably shorter period for child-delivery
leave, not to mention other inadequate provisional regulations for the
protection of pregnant women.
    Fifth, the ILO's agreement (No. 103) stipulates that guaranteed
earnings during the child-delivery leave has to be drawn from the nation's
social security or public funds; it should not be the individual's
responsibility.
    In Korea, however, industries are solely responsible for this
expense  in  its  entirety,  thereby  furnishing  grounds  for
gender-discrimination in employment.
    Sixth, another area where the ILO's agreement and Korean laws are
in discrepancy is in the area of night labor.  The ILO's article 89
prohibits employing women for a total of 11 hours, to include a nine-hour
span between 10 pm to the following morning at 7 or 9 am, while Korean
Labor Standards Act prohibits it between 10 pm until the following morning
at 6 am, totaling eight hours.
    Additionally, Korean women's protection laws are uniformly applied
to all industrial employees as long as there are five or more regular
employees, regardless of occupational type, job classification or level.
    This uniformed application can be more clearly differentiated from
that of the approved ILO's article on night labor and the agreement on
prohibition of women's work in mining (No. 45). In these two agreements,
women who are in position for managerial or technical responsibility, or
those who work in health or public welfare facilities, are excluded from
the prohibitory regulations.
    The main area where Korean laws are not in accordance with those of
the ILO's is that in Korean law: no regulations exist to regulate male
workers' night labor, to regulate night workers' protective measures, and
furthermore, to protect women during pregnancy.
    Seventh, the ILO's agreed-upon article 156 imposes regulations on
equal employment rights and supportive measures as rights for both genders
who bear the responsibility of supporting direct family members, including
infants. Korean laws, on the other hand, provide such supportive measures
only to women with responsibilities for infants.
    Regulations for the protection of women in the Labor Standards Act
in Korea were established in May 1953.  Essentially, however, it was almost
an imitation of Japan's 1947 regulations.  Around the ratification of the
UN's Convention on the Elimination of Discrimination Against Women in 1985,
however, Japan put its related laws in good order as a part of the
reconstruction of national law. They established an Equal Employment Act,
in conjunction with the order for an overall revision of the Women Labor
Protection Act.  One such effort resulted in the establishment of Child
Care Leave Act in 1991 that applied to both genders.  Consequently, there
is a considerable gap between the laws of the two countries at the present
time.


III. DIRECTION  AND PROPOSALS  FOR REORGANIZATION   OF KOREAN LABOR  LAW ON
     WOMEN TO REALIZE GENDER EQUALITY

1.  Fundamental Principles in Reorganization Law

    First of all, from the standpoint of legal principle one must determine
what the desirable relationship is between the women labor protection laws
and the principle of gender equality in employment before assessing what is
the best possible legal or other course of action.  Once that has been
done, one must then determine from a realistic and legislative standpoint
at what time, in which order, and in what manner these revisions or changes
will take place. For the latter, the realistic ability to implement these
protective measures, women's working status, the level of working
conditions of laborers in general, women's status in society and the
family, and various other conditions and realities must be taken into
consideration.
    In other words, while the basic aims and directions in revising our
nation's laws will be in line with the basic framework set forth by the UN
and the ILO on the establishment of gender-equal employment opportunities
and the protection of women, we need to carefully consider the present
realities of women in the labor force and search for a means to realize
such goals in a gradual and step-by-step manner.
    In order to realize gender-equal employment opportunities, the UN
and ILO  have periodically reexamined their regulations concerning the
protection of women, since the situation has changed from the time when
regulations were first set forth. As a result, they have adopted a method
in which nations can choose to modify or abolish some of the regulations
according to each country's internal situation or choose them to apply to
both genders.
    Second, the ultimate purpose of revising Korea's women-related
labor laws is to provide all workers  with equal opportunities for
employment regardless of gender and allow them to take part in economic
activities amidst healthy and safe working conditions. At the same time,
women should have their basic rights guaranteed as they raise their
families,  while  their  exclusive  maternity  protection  should  be
strengthened.  In other words, emphasis must be placed on changing the
prevalent classification of economic roles according to gender which has
acted as an ideological impediment to women's participation in economic and
social activities, and  revising the relevant regulations so  as to
strengthen gender-equal employment opportunities and maternity protection.
    Third, toward this end, the legal principles and systems of the
women-related labor laws, including the labor laws on the protection of
women and the Gender Equality in Employment Act must be restructured from
the perspective of realizing fully labor rights, equal rights, and the
right to maternity protection.  In other words, the women-related labor
laws can be restructured into a law system in which laborers' rights to
equal employment opportunities are realized, women are given full maternity
protection, healthy and stable working conditions are guaranteed, and
workers are able to fulfill their responsibilities at work and at home.

2. The Contents of Laws to Be Reformed

  The main essence of each of those laws can be changed as follows.


  A. The Gender Equality in Employment Act
  It should design to guarantee that all workers have the right to equal
opportunities in employment regardless of gender, it should reflect the
principle that for both men and women, gender is a predetermined biological
matter and should not be a basis of discrimination, and that people should
have the opportunity to work according to their talents and their nature.
The law should include measures which will  abolish gender discrimination
by ensuring equal treatment in every area including employment
opportunities, working conditions and environment, job training and
security, and labor union activities, as well as positive measures to
eliminate the existing disparities caused by such gender discrimination.
Together with this, regulations need to be made regarding  sexual
harassment within the workplace in line with the current international
legal trends as well as on gender discrimination in employment.

  B. The Maternity Protection Act
    It  should  ensure   that women   are  given   leave during   pregnancy,
childbirth and the nursing  stage so that their  working will not adversely
affect the natural physical and  physiological functions characteristic  of
women.  The  Act should also  contain protectively  measures to ensure that
such maternity protection does not a source of employment discrmination.
    By the way, not only do these maternity protection
measures help women but they serve as social safety measures since the
maternity functions of women contribute to  society by allowing the
reproduction of the human resources needed to power our country and
economy.  From that perspective, the  expenditures entailed in such
maternity protection should therefore not be left to businesses and
employers, but should be a public expenditure.

  C. The Occupational Safety and Health Act
    The laws which up until now have provided special protection only to
women should extend equal protection to both men and women, except for
those regulations pertaining to maternity protection. Differences among
workers' physical characteristics and strength should not be judged
according to their gender but on an individual basis.

  D. The Measures for Supporting the Dual Burden of Women Workers
    The law should provide support measures which focus on
helping workers to fulfill their responsibilities both at work and at home.
In other words, workers who are responsible for childcare, nursing, and
other household tasks should have their workloads alleviated or adjusted
accordingly.  Up until now, the responsibility for household tasks has
fallen upon women in accordance with  the typical gender-based role
classifications, and the majority of family living assistance measures have
been targeted at women. As a result, women who have both work and family
responsibilities find it almost impossible to receive equal opportunities
and treatment as men, of course, and also with women who do not have family
responsibilities.  This living assistance provided only to women also
contributes to employers' reluctance to hire women. Therefore, until the
problem of gender role classification within the family is addressed, it
will be difficult to implement institutional measures to promote equal
employment opportunities.  In addition, men being excluded from receiving
family living assistance goes against men's  right to sustain their
families. One can thus say that ideologically, this polict runs counter to
the  principle  of non-gender-discrminatory  employment  opportunities,
particularly since such support is not extended to both men and women.
Accordingly, the current legal system under which child care assistance
falls under maternity protection measures must be revised. In addition,
workers, regardless of gender, who have family responsibilties should be
given due consideration for such responsibilities.


3. In Reexamining Korean Current Laws

    The Laws on the protection of women, the emphasis should not be on
lowering the standards of protection of women to a level equal to that of
men; rather, it should be on either raising the standards of protection for
men or on first coming up with and implementing alternative measures before
lessening or eliminating those regulations providing special protection
only to women except for those pertaining to maternity protection.  Such
alternative measures should be geared towards reducing the number of
working hours for all workers and other ways of improving working
conditions, revising or fixing the Gender Equality in Employment Act,
eliminating the presently imbalanced wage system in which women receive
lesser pay, strengthening childcare support and assistance,and abolishing
the notion of gender role classification within the family,the workplace,
and society, among other things.
    The laws concerning the protection of women should not be
eased or eliminated unilaterally on the basis of the government's plans.
Rather, an in-depth research study on the actual level of compliance and
the effects of the present regulations to  protect women should be
completed, and on the basis of that, the government should hold sufficient
discussions and exchanges with labor and management representatives, as
well as other related parties.  After having collected the opinions and
views of all the relevant groups and made the appropriate modifications,
the government should then  implement its legislation  reform. Women should
be active particularly during the  consultation and decision-making process
about these problem.

《References》
International Labor Office (1987), Condition  of Work Digest-Women Workers:
    Protection or Equality, Vol. 6, No. 2.
------ (1992), International Labor Conventions and Recommendations.
Kim Elim  (1991),  "The Reorganization   of Korean  Labor Law  on  Women to
     Realize Gender Equality", Thesis of Doctor of Law, The Graduate School
     Ewha Woman's University.
Kim Kyo Suk  (1989), "Direction  for Reivion  on Women  Worker's Protection
    Rregulation in Labor Standards Act : for the Implemention of the Gender
    Equality in  Employment Act",  Labor Law,  2nd (ed.),  Korean Labor Law
    Academic Society.
Korean National   Council of   Women, (1993),  Directions  to  be  Taken in
    Revising the Gender  Equality in  Employment Act,  A Report  on Seminar
    Results.
The Korean Women's Development Institute (1985),  A Study on Accelering the
    Employment of Women through Legal Measures.
------ (1990), A Study of Labor Laws related to Women's Welfare.
------   (1993),   A  Study   on   the   System   for  the   SEttlement   of
    Sex-discriminatory Employment Disputes.
------ (1993), Child  Care Leave  Systems :  Setting A  Research and Policy
    Agenda.
Yun, Hu-jung and  Shin, In-ryong(1991), Feminist  Legal Jurisprudence, Ehwa
    Womans University Press.

신고
Posted by KWWA
Reforming Gender Discriminatory Legislation and Practices
kwwa  2002-10-28 15:18:04, 조회 : 407

##   Reforming Gender Discriminatory Legislation and Practices  
  
1.  Consolidating gender discriminatory national and local laws: On May 16, 2000, the 'Plan for Consolidating Gender Discriminatory National and Local laws was established. The aim of the plan is to reform all gender discriminatory laws by 2001.
   
* Compensation for damages stemming from gender discrimination and sexual harassment Related Laws - Gender Discrimination Prevention and Relief Act (enacted in February 1999) - 'Genders Equality Employment Act' (amended in Feb. 1999, including sexual harassment in the workplace)

-> Major contents of related laws
- Provision of relief to victims of gender discrimination in employment, education and the supply of goods/facilities/services, or legal/administrative practices

- Financial assistance for litigation in cases of gender discrimination - Mandatory education on preventing sexual harassment in private businesses and public facilities such as government offices, educational institutions, and medical facilities

- A maximum fine of $3,000 (Sexual Equality Employment Act) ; in case of violation of the procedures for handling the perpetrators of sexual harassment or contravention of the legal obligation to provide mandatory education in preventing sexual harassment

- A maximum fine of $5,000 (Sexual Equality Employment Act) ; in case of injurious actions against victims of sexual harassment


2. Provision of effective counseling and assistance to persons who have faced gender discrimination (including sexual harassment) by the Gender Discrimination Complaint Center, under the Presidential Commission on Women's Affair. Establishment of 20 counseling centers for employment equality within non-governmental women's organizations, or local Labor Offices under the Ministry of Labor.  
Assisting Women's Entreprenevrial Activities
   
*  Facilitating the process for women to establish their own businesses  
-  Provision of start-up spaces and management consulting services for women to start their own businesses in non-manufacturing and service sectors through the Training Center for Women's Business Start-ups in seven areas nationwide: Seoul, Pusan, Taegu, Kwangju, Daejeon, Kyunggi (Suwon) and Kyungnam (Changwon)

- In cases where a low-income female head of household wishes to go into business to ensure the survival of her family, financial assistance for office rent will be provided up to $20,000 at the rate of 4% annual interest.

- Provision of free counseling services in drafting business plans and developing business skill; professional counselors stationed in thirty Support Centers for Small-sized Businessesnationwide

- Arbitration of a 1-on-1 sisterhood for women business founders and current businesswomen is provided  
   
* Provision of diverse forms of preferential treatment for women's businesses  
- Provision of financial assistance of up to $10,000 per case for 200 selected women's enterprises attempting to acquire standard international certifications such as ISO, UL, etc.

- Granting 2~5 extra evaluation points in the selection process of corporations to be supported when applying for policy funds such as the Management Stabilization Fund, the Assistance Fund for Provincial Small and Medium Business, the Restructuring Fund, the Small Business Foundation Fund, or the Management Improvement Fund

* Operation of the Exclusive Assistance Office for Women Businesses (established on October 10, 2000)

- Following consultation of sources such as status quo reports from women's organizations (e.g. the Korean Women Entrepreneurs Association), preferential status will be given to women's businesses over other contracted companies

- 3~5 extra points and preferential status will be afforded to women's businesses awarded a contract for private group contract deals

- Assistance in the form of exhibits to promote sales of women's businesses

3. The development women's occupational capabilities and employment assistance  
   
*  Providing more opportunities for women to develop their capabilities and find employment.  
- Provision of vocational training and employment opportunities for women (especially those unable to attend regular employment training due to housework or parenting) obligations through the 47 'Working Women's Homes' nationwide

- Assisting women to find part-time jobs and providing prompt employment information through the 20 Workforce Banks countrywide
   
* Supporting women who are returning to work after pregnancy, childbirth, and parenting, under the Ministry of Labor  
-        Awarding $1,200~$2,000 per female employee to employers proprietors insured by Employment Insurance who employ women that return to work after 3 months to 5 years of absence due to pregnancy, childbirth and parenting
-        Providing a monthly sum of $150~$200 per worker to employers insured by Employment Insurance who hire workers for over 30 days after returning from leave (under Article 11 of the Equal Equality Employment Act)  

*  Increasing assistance offered to inexperienced women university graduates who are seeking employment  
   During employment seasons, the Workforce Banks under the Ministry of Labor will open exclusive channels to assist women university graduates who are seeking looking for employment. This channel will provide newly graduated women with information on employment and vocational training and offer counseling, internships and guidance for other government-funded projects

*  Holding e-business education sessions in 12 universities nationwide for unemployed university graduate women

* Offering industrial site experience programs that provide female university students with a chance to acquire work experience at corporations or public offices, thereby enhancing their ability to find employment  
   
4. Expansion of Domestic Welfare and other Diverse Service for Women:  
  Women working in Agriculture & Fishery sectors can become professionals too

   Setting up Agricultural Management courses for women, both in beginning and advanced levels, as a part of a educational process specially for female agricultural workers

- Training women with experience in the agricultural sector in agricultural management, marketing and information technology - Training women with little experience in the agriculture sector in agricultural policy, work ethics, basic information technology and cases of agricultural settlement

Training in farming and agricultural machine utilization for women

Developing agricultural management programs for women  
   
  Alleviating the concerns of working women who are bring up children  
   Financing a portion of expenses when medium or small-sized enterprises establishing childcare facilities

Giving a subsidy to employers to encourage paternity leave

Deducing up to $1,000 a year per person from his/her earned income as part of special exemption to reduce childcare expenses (including fees for kindergarten) from year 1999

Executing school lunch programs in all elementary schools and having extended to include middle and high schools

Trying the 'Hands for the Farm' program to help female agricultural laborers when they temporarily stop working due to childbirth or other circumstances  
   
  Expanding national support for childcare  
   Expanding childcare expense support for children of low-income families

- Offering free education for children under the age of five from low-income families in the agricultural and fishing districts

Expanding exclusive facilities to care for infants and disabled children

- Expanding the especial childcare facilities to 184 by 2003

Activating after-school childcare utilities

- Providing subsidies for after-school childcare for 4500 children of low-income families

- Beginning to operate private facilities for after-school childcare as a part of a public labor project from September 1998  
    
  Guaranteeing the livelihood of elderly women by pension  
   The amendment of the National Pension Scheme in December 1998 guarantees the livelihood of elderly women

- Admitting the amount of paternity leave taken, which was excluded from the subscribing period for a pension, as valid if the insurance equivalent for the period is paid afterwards

- Allowing one to receive a portion of the ex-spouses pension upon reaching the age of sixty, in proportion to his/her years of marriage when a spouse gets a divorce after five or more years of marriage

- Reducing the minimum years of subscription for pension from 15 to 10 years to protect the pension allowance of subscribers who only participated in the workforce for short time, such as women

- Lowering the insurance premium rate from 9% to 3% to expand the number of voluntary subscribers including full time housewives  
   
  Supporting training for employment and the setting up of new enterprises for unemployed women with families to support

   Financing with state subsidy funds, training expenses of $300~$400 per month per trainee to train one in fields easier for employment and business start ups; such as telemarketing and cosmetology

Supporting the leasing of office space costing within $50,000 (at 7.5% per annum) for unemployed matriarch unable to receive a loan due to difficulty in securing a mortgage guarantee

Granting 1/2 (1/3 in case of large-sized enterprises) of employee's income for the first six months of his/her employment to employers who newly employ matriarchs among unemployed women who have applied for stable jobs at recruitment institutions  
   
  Expanding aid for low-income matriarch families  
   Expanding the subsidization for childcare for children under six and for education fees for middle and high school students

Providing support with the rehabilitation fund and assisting one in renting a house
  Looking after the application of the health of pregnant women and infants  
   Expanding the application of medical insurance coverage to include basic tests such as diagnosis before childbirth, blood tests, and urine tests

Executing health check-ups for pregnant women and infants of low-income families, vaccinating infants and testing newborns for birth defects, thereby preventing the outbreak of mental defects

Supporting the medical fee for premature infants and infants with birth defects of low-income families

5. Guaranteeing the rights of housewives and supporting their social activities  
   
  Decreasing the inheritance tax for a spouse and exempting donation tax for her/him with regard to property accumulated after marriage

   Deducing $5 hundred thousand to 3million from the inheritance tax for a spouse
Exempting donation tax on dividing properties to divorce  
   
 
Women, becoming computer-friendly

   Teaching housewives basic computer and Internet skills through Internet training for one million housewives at computer training private institutions and data processing institutions designated as internet schools for housewives
   
  Increasing institutions of lifelong education for women  
   Setting up an overall database by which information about the state of nationwide social education institutions for women, programs of education, and lecturers can be searched by May 2001
- The number of related institutions is 1,600, including Women halls, Social Welfare Organs, Organizations for Women, and Halls for Domestic Science, and more

Building and operating Women Halls for the purpose of developing women's capabilities and expanding social participation by women
- As of the first half of 2000, there are 99 such halls  

신고
Posted by KWWA

티스토리 툴바