DNA법의 문제점과 위헌성 검토 = The Unconstitutionality of Act on the Use and Protection of DNA Identification Information 2010

다국어 초록 (Multilingual Abstract)

In Korea Act on the Use and Protection of DNA Identification Information(shortly, DNA Act) was enacted in 2010 for collecting and databasing DNA information from the convicted and the arrested suspects. The aim of DNA Act is said to promote effective countermeasures against the serious crimes in the future through establishment of DNA database to compare with the specimen from the crime scene. However, it is worried that DNA Act will strengthen the tendency of the so-called ``big brother society``. DNA Act allows the government to gather and database DNA information from the criminals who (are alleged to) have committed certain crimes without any estimation of their potential danger of future crimes. This policy will tighten and enlarge the control and surveillance of the government over the citizens, together with our long-continued system of all citizens` mandatory fingerprinting. Based on this recognition, this article reviews the constitutionality of DNA Act critically. First, DNA Act violates the constitutional principle of presumption of innocence, because the DNA information can be collected form the suspects and convicted simply on the basis of the easy stigmatization that they are potentially dangerous with relation to the ``not-yet occurred`` crime. Secondly, DNA Act violates the principle of warrant requirement. According to the Act, the warrant is needed for gathering DNA information. However, the warrant is automatically issued when the suspects or convicted persons have committed the listed crimes. The warrant is only a ``decoration``, therefore this situation never corresponds with the constitutional principle of warrant requirement. Finally, this study argues the violation of the principle of proportionality in several points. The listed crimes eligible to collect DNA information by DNA Act are too extensive without any consideration of their seriousness and the danger of repeat, and the preservation term of DNA information is too long. In summary, this study argues that DNA Act is totally unconstitutional, and so we should abolish it.