| 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.
| | |