헌법불합치 결정에 따른 디엔에이법의 입법개선 방안

Abstract

Constitutional court sentenced unconformity-decisions on adjudication on a constitutional complaint for § 8 of Act on Use and Protection of DNA Identification Information(DNA Act) in Aug. 2018. In Korea, Constitutional court has the power only to declare the constitutionality of statutes, by unconformity-decisions the Constitutional Court exercises the power to decide the validity of the unconstitutional statutes. According of DNA Act, the purpose of this act is to contribute to investigations and prevention of crimes and the protection of citizens’ rights and interests by providing for matters necessary for the collection, use, and protection of DNA identification information. But the aim of this act is only effective criminal investigation. So effective criminal investigation as purpose should be preserved to Proportional Principle But DNA database is a risk of violating the right to privacy, especially Personal Information Control Right. In this unconformity-decisions Constitutional court ordered the revision of Act of DNA. A public prosecutor may collect DNA samples from a person subject to collection of DNA samples under Article 5 or 6, with a warrant issued by the competent district court judge at the request of the public prosecutor(article 8). But there are no method of dissatisfaction against warrant to collect DNA samples to detained suspects, etc. which made the same article as unconstitutionality. So it was said that legislative should new dissatisfaction system as like Examination of criminal suspect and review of legality of arrest and detention in Criminal Procedure Act. If examination of criminal suspect were accepted in DNA Act, Upon receiving a request for a warrant of detention of a criminal suspect under Article 8, a judge shall hold a hearing to examine the criminal suspect without delay. And after issue of warrant of collecting DNA samples, detained suspects are able to request the competent court to review the legality of collecting DNA samples. In addition to this article of unconformity-decisions Constitutional court, DNA Act have many unconstitutional articles, for example Article 12 (Destruction of DNA Samples) and Article 13 (Erasure of DNA Identification Information). In according Article 13, DNA Identification Information should be stored until a prisoner or a detained suspect is dead but this article infringes on fundamental rights seriously.