형사법상 DNA 관련 입법 방향과 전망

Abstract

Recently, DNA evidences are playing crucial roles in solving old cases that have remained unsolved. Along with that, the amendment of Article 8 according to the decision of the Constitutional Court in 2018 that absence of the subjects’ right to state their opinion when requesting the warrant for collecting DNA samples is unconstitutional suggests that the direction to revise DNA related laws must consider both of enhancing efficiency of investigation and protecting human rights during the investigation. In other words, the essence of the direction of revising DNA related laws is how to harmonize the two factors: one is protection of fundamental rights from infringement caused by collection of DNA and use of the DNA information and the other is prevention of crimes and efficiency in investigation using DNA information enabled by advanced technologies. Therefore, this article begins with organizing DNA related bills. There are total 45 DNA related bills either from initiatives by Korea’s National Assembly or proposals by the Korean Government. Among the 45 bills, except for three currently in committee examination, 29 bills were not adopted but discarded by expiration. Those not adopted are in three categories: first, reducing the scope of crimes that require collection of DNA, such as excluding juveniles, who are in detention centers by the Juvenile Laws, from subjects to collect DNA identification information as well as excluding the crimes committed during lawful labor, assembly, or demonstration practices from being applied by DNA laws. Second, revising the regulations about the DNA identification system currently binarized under the public prosecutor general and the commissioner general to improve speed and efficiency of investigation. Lastly, establishing a new process to review the legality of collecting DNA samples and erasing the DNA identification information under the circumstances that there is no concern of repeated crime by the subject. These contents were all pointed out as issues and discussed as solutions in previous papers about DNA in Criminal Law. Currently, Korea is the only country that has parliamentary politics system but lacks legislation impact assessment. Legislation impact assessment is systematic analysis of social effect of a bill before and after its initiative. Since last year, 2020, was the year of renascence for studies about DNA in Criminal Law, this article is going to analyze DNA related bills and suggest the legislative direction and prospect based on issues discussed in previous studies. Currently, more than a dozen bills are proposed a day in the National Assembly, and many are scrapped four years later due to the expiration of the National Assembly's term. Considering the current status of DNA evidence in DNA-related legislation under criminal law, we hope that the meaningful but discarded "Table 3" bill will be revived along with the direction of legislative reform presented in the Criminal Procedure Act and the DNA Act and the "attached Table 1" presented at the end of the paper.