論民事上歧視禁止規定的證立可能性

On the Justification of the Civil Antidiscrimination Program

This study aims to discuss whether the civil antidiscrimination program is justifiable in the contemporary civil legal system. In other words, is the civil antidiscrimination program incompatible with the contemporary civil legal system—a system established in the principle of private autonomy and contract freedom? Some believe that the said program cannot be justified due to the following two reasons: 1. While the goal of the program is to realize distributive justice, such aim is not within the domain of contemporary civil law. 2. The program is unable to distinguish law from moral. In this study, it is argued that one of principal missions which contemporary civil law aims to complete is to achieve distributive justice. Furthermore, the alleged inability to distinguish law from moral is both nonexistent and ungrounded. The very essence of civil antidiscrimination program is that to achieve justified freedom, it is necessary to impose certain restrictions based on the concept of equality. Such program is consistent with the development trend of the modern civil law.