‘특정중대범죄 피의자 등 신상정보 공개에 관한 법률’의 위헌성 검토 - 얼굴 사진 공개를 중심으로 -

Abstract

The “Act on the Disclosure of Personal Information of Specific Major Crime Suspects”(hereinafter “the Act”) was enacted in October last year and came into effect on January 25, 2024. The Act is a general law regarding the disclosure of personal information of major crime suspects. The law regarding the disclosure of personal information has existed since before. The Act has been improved compared to previous laws by rationalizing the procedure for disclosing personal information and compensating for damages caused by incorrect disclosure of personal information. However, the Act has also increased the possibility of infringing upon the personality rights of the subjects by expanding the scope of personal information targets and forcibly photographing and disclosing the faces of suspects. The unconstitutionality of disclosing personal information has been raised since the introduction of this system in the “Act on the Protection of Youth against Sexual Offenses” enacted in 2000. Despite the frequent claims that the system of disclosing personal information is unconstitutional, the Constitutional Court has consistently ruled in favor of the constitutionality of related cases. The system of disclosing personal information has gained public support and further developed every time a crime that caused social outrage occurred. The Act can be considered as a culmination of those developments. The most notable in the Act is the photographing of suspects’ faces by investigative agencies and the disclosure of those photos (Article 4, Paragraph 5), which is a new addition not found in previous laws. The act of state agencies photographing and disclosing suspects’ faces for the purpose of disclosure is significantly different from the previous system of passive disclosure of suspects’ investigative records held by state agencies and could be considered unconstitutional. The photographing and disclosure of suspects’ faces under the Act may resemble mug shot system in the United States, but it is important to note that the two systems are significantly different. The latter involves taking mug shots for all individuals arrested for investigative purposes, categorizing them as public records, and then disclosing them to the public. Therefore, mug shots of not only individuals arrested for serious crimes but also those arrested for minor offenses are disclosed. In contrast, the former exceptionally mandates photographing and disclosing faces only of major criminals who are socially condemned. The stigmatizing effect on the subjects is greater in the former than the latter. The infringement on personality rights is also greater in the former than the latter. The photographing and disclosure of suspects’ faces under the Act are considered to have much greater potential for being unconstitutional than mug shots in the United States.