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최종편집 : 2019.11.29 금 15:13
CoverControversial Issues
The Unconditional Extension of the DNA Act Should Be Avoided
Kwak Da-eun  |  dashineshere@cau,ac.kr
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승인 2019.11.10  14:03:31
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▲ 사진 출처: https://www.yna.co.kr/view/AKR20170930053000004
 
          DNA is the genetic material in the cells of the body, which contains everything that comes out of the human body and does not change over time. DNA has gained prominence as the most accurate and effective identification method. DNA evidence also contributed to the arrest of the suspect of the Hwaseong serial killings. However, the debate on ‘Act on Use and Protection of DNA Identification Information (DNA law)’ has been going on since the law was put into effect. The fundamental reason is that the DNA law, which allows the state to collect DNA, violates the basic rights of the people. Last year, the Constitutional Court ruled that the DNA law goes against the constitution. Thus, CAH divided the problems of the DNA law into target, procedure, and effect.
          First, the target of the current DNA law is heading in the wrong direction. The DNA law was implemented in the wake of the Cho Doo-soon case with the aim of preventing violent criminals from committing crimes again. In fact, however, there are more cases in which DNA was collected from minor crimes, not violent ones. In addition, from 2012 to 2016, the number of DNA samples collected by the prosecution for home invasion or interference in rights activities was more than double that of violent crimes such as murder and arson, according to the Democratic Party of Korea lawmaker Lee Choon-seok. DNA is being collected for a purpose that is completely opposite the original goal. It has even forced labor unions and social movement participants to collect DNA samples of their members. Let’s look at the KEC case. In 2015, nearly 100 union members were disciplined and 6 members were arrested for occupying the plant where they worked during a labor dispute. Under the current law, ‘Punishment of Violence, etc.’ can be applied in cases where unionized workers occupy factories. The problem is that Article 5 of the DNA Act, defines this as a crime subject to DNA collection. In 2018, Hanshin University students, who were demanding direct election of the president, were also forced to submit to DNA tests. It needs to be reconsidered whether such labor disputes or student rallies are violent crimes with a high risk of repeat offenses as stipulated in the DNA law.
          Second, there is procedural problem with the DNA law. There is no definition of a person's right to reject a DNA sample under the current DNA Act. This violates the people's right to trial. As mentioned earlier, the KEC union disagreed when it was notified that it was subject to the DNA Act. Nevertheless, the prosecutor was given a warrant and they were required to submit do DNA tests. Some threatened that the level of punishment would be higher if DNA samples were not collected. Unionized workers filed a petition, and the court ruled against the constitution. This is because Article 8 of the DNA Act, which states that a prosecutor can take DNA samples from a convicted or arrested defendant by a warrant issued by a judge, violated the proportionality as it did not stipulate the right to defend the subjects. The proportionality means the principle that law must abide by the justification of purpose, appropriateness of method, balance of legal interest, and minimum of limitation. In other words, specific procedures should be supplemented. It is necessary to give the offender a chance to raise his or her opinion, and then be able to issue a warrant or decide to reject it through a trial. In addition, it is difficult to delete DNA from the database because those DNA samples are semi-permanent. Therefore, the problem of the DNA collection process in DNA law is not something trivial.
          Third, the effect of the DNA law on crime recidivism is minimal. Although the DNA law is enforced on crimes with high recidivism rates, it does not lower the recidivism rate of actual crimes. The DNA law is used to investigate and prevent crimes by collecting DNA samples from criminals with high recidivism rates, such as murder, rape and theft, and storing them in the database. In fact, however, based on the National Police Agency's tally of the three-year crime trends from 2014 to 2017, the recidivism rate has steadily increased from 13,000 in 2014 to 14,000 in 2016. These statistics show that the law lacks practical force. Furthermore, criminal law states that the risk of recidivism is determined based on factors of the individual offenders, not on the type of criminal act. However, the current DNA law does apply in the same way. Article 5 of the DNA Act stipulates that DNA can be collected from a person convicted of any of 11 specific crimes. In other words, since the crimes have already a high risk of recidivism by itself, it is okay for the state to collect and manage DNA samples. Lawyer Lee Hye-jung said, "It is an excessive violation of human rights for people who are not worried about repeat offenses after being released from prison to provide their DNA on a uniform basis."
          The Hwaseong serial killings dramatized in ‘Memories of Murder’ is a case that almost remained in the public eye. This unsolved case was finally solved thanks to the DNA investigation method in line with modern technology development. However, Shin Hoon-min, a lawyer, said, "We are worried that we might move toward increasing the number of DNA-gathering targets due to the Hwaseong case." DNA law has very fundamental problems of human rights violations. The DNA collection range is too wide, and there is no defense against it in the process. Moreover, the DNA law, which was intended to prevent crimes with high recidivism rates, has not been a big achievement in statistics. Therefore, the unconditional extension of the DNA law should be avoided.
 
          With the introduction of DNA testing techniques in Korea, there has been a wave of innovation in criminal investigations. After 33 years of unsolved murders in Hwaseong, we finally found a suspect with the help of the DNA database. It was the DNA Act of 2010 that supported these technologies. The implementation of the DNA law allowed thousands of unsolved cases to be solved with lower costs and high efficiency. However, the Constitutional Court ruled against the Constitution in the DNA law last year. If the legislative bill is not made by December 31th, it could be difficult to investigate the case through DNA It is because the current law violates the basic rights of the people. Under these circumstances, it is urgent to introduce legislation through careful consideration of the DNA law.
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