『디엔에이신원확인정보의 이용 및 보호에 관한 법률』의 위헌성에 관한 논의 - 미국, 영국, 독일, 프랑스의 입법례 비교를 중심으로 -

Although it has been only one and a half years since the Act on Use and Protection of DNA Identification Information(hereinafter the Act) was enacted, successful cases in crime investigation increase using the DNA Database system under the Act. Controversy over the constitutionality on the Act, however, is being raised by legal scholars and human rights groups, such as National Human Rights Commission of Korea. After reviewing the DNA Acts of the United States, the United Kingdom, Germany, and France and comparing them with the DNA Act of Korea, this paper discusses the constitutionality of the Korean DNA Act as follows. First, regarding the argument about the violation of the principle of presumption of innocence of the Article 6, this article argues that DNA sample-taking limited to detainees does not unnecessarily arouse prejudice of trial judges. Second, as to the Article 8 without specific warrant requirements, this paper argues that the Article 8 is not unconstitutional as; 1) the requirements for detention warrant under the Korean Criminal Procedure Act allow judges to review necessary factors to take DNA samples from suspects, such as crime seriousness, possibility of suspects to re-offend; 2) the Article 8 is much stricter than those of the four countries by requiring judicial police officers or prosecutors to obtain warrant from district court judges to collect DNA samples. Third, regarding the Article 5, overall analysis of seriousness, occurrence rates, and recidivism rates of the crimes together with a comparative study on the four countries leads to the conclusion that the Article 5 does not violate the proportionality principle. However, the Article 13 with no possibility of interested parties to request DNA information to be deleted needs to be revised so as not to violate detainees’ right to informational self-determination.