디엔에이감식시료 채취와 영장주의

Abstract

The high-tech investigative techniques that have emerged with the development of science and technology seem to present to the public a blueprint for establishing a groundbreaking social safety system. However, if the government ignores efforts to minimize the restriction of people’s fundamental rights by emphasizing only the public need to prevent crimes, the fallout of monitoring policy could come as dangerous as any other crime. In this regard, the constitutional discordance adjudication in 2018 provides an opportunity to review the overall system on the collection of DNA identification information. First of all, the collection of DNA samples from prisoners under Article 5 of the Act on the Use and Protection of DNA Identification Information(hereinafter referred to as “the Act”) has, essentially, the character of a security-measure, so the review of the “risk of recidivism” should be made at the stage of judicial judgment. Next, the collection of DNA samples from detained suspects under Article 6 of the Act should be limited to the purpose of investigating crime in the case at issue. As such, storage and matching of the samples against suspects as in the case of detainees should not be allowed. In this case, the collection of DNA samples should be understood as a compulsory disposition equivalent to search and seizure against suspects who arepresumed innocent. And a hearing or appeal procedure, as suggested by the Constitutional Court, should be introduced since the degree of infringement of fundamental rights in the following procedure of storage and matching of information (DNA identification database) cannot be regarded as trivial. In addition, the collection of DNA samples with consent under Article 8(3) of the Act shall be supplemented so that a sufficient explanation is provided in the process of confirming consent. The warrant-requirement principle is not a pro forma principle that requires a certain process to be taken. It is a constitutional principle that calls for substantial judicial control to prevent the abuse of the state’s authority and minimize the restriction of the people’s fundamental rights. the revision of legislation that is faithful to the basic purpose of this principle should be made as soon as possible.