강제채혈의 입법론 검토와 방향 제시

Issues involving compulsory blood sampling by investigative agency have been ongoing for quite some time, such as the exclusion of appraisal report from admissible evidence for violation of warrant requirement and due process. Not infrequently, there have been cases involving the compulsory blood sampling from an unconscious drunk driver, in which the appraisal report based on blood samples collected in violation of due process was excluded from admissible evidence, thereby obstructing the discovery of substantive truth and damaging legal justice. The first and foremost reason for the problem seems to be the lack of a clear legal basis or procedure regarding compulsory blood sampling. To tackle the problem, it is imperative to legislate pertinent legal provisions. In so doing, it is important to consider such factors as: dignity of the person whose blood is collected, right to privacy of one's blood information, privilege against self-incrimination, reasonableness and proportionality, the warrant principle, the principle of criminal procedure based on legality, and the prevention of loss of legal enforcement power. Each de lege ferenda [legislative theory] on compulsory blood sampling asserted thus far is grounded in a weak basis, with only a questionable validity. It seems appropriate to provide for compulsory blood sampling in the Criminal Procedure Act, instead of the Road Traffic Act, by newly establishing Article 216-1 of the Criminal Procedure Act.