DNA 채취제도와 채취영장의 법적성질과 그 쟁점

Abstract

DNA sampling system is for effective countermeasures against crimes that have become more and more ferocious and intellectual. The system is based on the Act on Use and Protection of DNA identification Information (hereinafter ‘DNA Act’). It is considered reasonable to regard the Clause 1, Article 5 of the DNA Act that regulates crimes subject to sampling as a non-mandatory provision. DNA sampling system shall be considered as a special disposition that administrative measure, compulsory measure and security measure are mixed. It is also considered as a system that the Risk Criminal Procedure Act is realized concretely as the system is placing emphasis on the operation to compare․analyze DNA preemptively and actively for preventing crimes. Although the system puts focus on prevention of crimes in both function of identification and the future regarding unsolved crimes that occurred in the past, it is necessary to look back whether or not the system limits basic human rights of subjects of sampling unnecessarily and to respect human and basic rights of subjects of sampling while emphasizing effectiveness of DNA sampling system. Sampling from the body of a prisoner or arrested suspect with DNA sampling warrant is rather close to the in personal compulsory measure, and sampling of specimen from the place of crime is close to the legal nature of in rem compulsory measure. Due to the characteristic, legal nature of DNA sampling warrant differs from verification warrant, detention center for judgment and permit for judgment. Collection of DNA shall be considered that it includes the process of identifying DNA. Therefore, an assertion that additional warrant for identification other than sampling warrant is not appropriate. And the assertion that a judge evaluates the risk and prediction of repeated crime while examining issuance of a sampling warrant is also inappropriate in a sense that the risk and prediction of repeated crime have already been evaluated as the Item 1 through 11 of Clause 1, Article 5 of the DNA Act regulates crimes subject to sampling. And as for sampling warrant, reasonableness․proportionality and crimes subject to sampling that are required for arrest warrant or search․seizure․verification warrant have already been stipulated on the DNA Act, so it is considered necessary to assume that such requirements are not included in the requirements for issuance of DNA sampling warrant. Accordingly, whether or not the subject of sampling accepted request of a sampling institute for DNA collection must be one and only requirement when a judge examines issuance of a sampling warrant.