Preface 3 Chapter 1. General Overview of the DNA Identification Act 9 I. Legislation Process 11 1. The Process of Publicizing the DNA Database Bill 11 2. Legislation of the DNA Identification Act 13 3. Summary of Legislation Process 17 II. Major Contents of the DNA Identification Act 18 1. Definition of Terms and Legislation Purpose 18 2. Target of DNA Sample Collection and List of Applicable Crimes 19 3. DNA Samples and DNA Identification Data 20 4. Management of the DNA Database 22 III. Current Situation of Establishment of the DNA Database 23 1. The National Police Agency and the National Forensic Service 23 2. The Public Prosecutors' Office 26 3. Current Status of Management of the DNA Database and DNA Management Committee 27 Chapter 2. Review on Unconstitutionality of the DNA Identification Act 31 I. Discussion on Necessity of the DNA Identification Act 35 1. Essence of the Risk Management Policies 35 2. The Efficacy of DNA Databases 38 II. Constitutionality of the DNA Identification Act 44 1. Restricted Fundamental Rights: the Right of Self-Determination to Individual Information 45 2. Review of Important Issues 48 Chapter 3. Review on Legitimacy of the DNA Identification Act from the Perspective of Criminal Law 55 I. Implications for Criminal Justice Policy 59 1. Safety vs. Freedom and Protection of Privacy 59 2. Necessity of Information Collection 60 3. Principle of Proportionality and Information Collection 61 4. Civil Trust toward Government Institutes 62 II. Legitimacy of Legislative Purpose 62 1. Purpose for Crime Investigation 63 2. Purpose for Crime Prevention 64 3. Purpose for Protecting Rights and Interests 69 III. Review on Major Issues 71 1. Legal Characteristics of Acts Concerned 71 2. Target of DNA Sample Collection an List of Applicable Crimes 73 3. DNA Samples and DNA Identification Information 77 4. Management of DNA Database 82 5. Equality of Punishment 83 IV. Measurement for Improvement 84 1. Effective Securement of Legislative Purposes 84 2. Direction for Improvement of Respective Clauses 85 3. Database Management and Follow-up Measures 86 4. Necessity for Amendment of the Criminal Procedure Law 87 Chapter 4. Conclusion 89 References 95

Currently, scientific evidences based on various types of investigation strategies are being utilized because of advance of science technology. In Korea, as one of these scientific evidences, DNA evidences that are collected are being loaded to the database, after the Act on Use and Protection of DNA Identification Information (hereby after, “DNA Identification Act”) was legislated. The DNA Identification Act was enacted in January 2010, and started to be enforced in July 2010. This Act justifies collecting DNA evidences and loading it to the database for the purpose of crime investigation, crime prevention and protection of benefits and interests of citizens. The DNA Identification Act aims at preventing second conviction in the future, and it enables collection and analysis of DNA samples from detained suspects or prisoners, and it allows DNA identification information acquired from this procedure to be retained in the database which is managed by the Prosecution and the Police. Therefore, if crimes are committed in the future, it is expected to arrest criminals in an efficient manner based on DNA identification information that is already obtained.   However, issues of infringement on human rights cannot be neglected, because DNA itself entails a lot of information regarding individuals, and the DNA Identification Act enables to collect one’s DNA information on the premise of potential crimes that might be committed in the future rather than pertinent crimes. Actually, the fact that the DNA Identification Act had to go through long period of legislation procedure over 15 years was largely caused by this issue. And in June 2011, in Korea the constitutional appeal was filed to the DNA Identification Act on the grounds of infringement on the fundamental rights such as the right of self-determination to individual information and freedom of privacy.   In this respect, this report would examine whether the DNA Identification Act has established legitimacy according to the Criminal Law, and further provide improvement suggestions for this Act based on the examination. First of all, in the first chapter, this report would explain process of enactment of the DNA Identification Act, and show current status of establishment of the DNA database.   Subsequently, in the second chapter, whether the DNA Identification Act is actually needed would be discussed especially centered around risk management policies and efficacy of DNA database. And the constitutionality of this Act also would be covered. Finally, in the third chapter, implications in criminal policies of the DNA Identification Act as well as legitimacy of legislative purpose would be discussed, and then improvement suggestion through reviewing each contents would be provided.