주민등록법상 지문날인제도의 위헌성에 대한 연구 - 헌법재판소 2005. 5. 26, 99헌마513·2004헌마190(병합)결정에 대한 비판을 중심으로 -

Abstract

While the nationals of the Republic of Korea, when reaching age 17, are required to seal the fingerprints of ten fingers mandatorily to issue resident registration certificate regardless of the individual's no matter who they are, fingerprint belongs to a bio information of an individual belongs among confidential and important personal information. Therefore, they are liable to be under restriction on right to self determination of private information, a right which the subject of the information shall determine voluntarily on release and use of personal information by the Residents Registration Law Fingerprint System. However, such restriction, unlike what was manifested by majority of opinions in Constitutional Court on May 26, 2005, is respectively in violation of principle of legal saving and principle of proportion for the following reasons, and thus the Fingerprint System of Residents Registration is an unconstitutional system that infringes personal information self determination right etc. In other words, Fingerprint System by Residents Registration Law, unlike what was suggested by majority opinions of Constitutional Court on May 26, 2005, is against the principle of forbidden general delegation in that the requirement of fingerprint sealing of ten fingers which is specified as intrinsic and basic provision in Residents Registration Law Clause 5 of Article 8 of 17 as of May 26, 2005 is stipulate not directly by Residents Registration Law, a mother law but in No. 30 of an annexed paper by Residents Registration Law Enforcement Decree Clause 2 of Article 33 as of May 26, 2005, a subordinate law. In addition, this requirement is against the principle of legal saving in view of constitutional law in the point that this requirement is found no where in the regulation of storing of fingerprint information by National Police Agency Commissioner General, computerized database of fingerprint stored by National Police Agency Commissioner General, or regulation on usage for criminal investigation purpose. Furthermore, use of fingerprint information of ten fingers of all the nationals of no less than age 17 with no criminal history collected by Residents Registration. Law Fingerprint System may not be deemed at least as infringement of personal information self determination right, but abuse of such information in monitoring behavior of particular individuals under the excuse to general criminal prevention or criminal information collection after all contradicts the principle of proportion by losing the balance of the benefit and protection of the law.