DNA Act

The Act on the Use and Protection of DNA Identification Information (abbreviated "DNA Act", 디엔에이 신원확인정보의 이용 및 보호에 관한 법률) was enacted for the purpose of effective investigation and prevention of crimes by obtaining DNA (deoxyribonucleic acid) information through the DNA testing of biological samples.

Nowadays technological advance eliminates the possibility of punishing the innocent while it endangers the fundamental right to privacy.

Key words
DNA, DNA testing, constitutional right, information self-determinism

Object of the Act
In general, DNA information of a prisoner and suspect arrested, who committed the following crimes, can be collected without the consent of the data subject: Article 5(1), 6
 * 1) Arson prescribed in the Criminal Act (Articles 164, 165, 166(1), 167(1) and 174);
 * 2) Murder prescribed in the Criminal Act (Articles 250, 253 and 254);
 * 3) Kidnapping prescribed in the Criminal Act (Articles 287-289, 293 and 294);
 * 4) Rape prescribed in the Criminal Act (Articles 297-301, 301-2, 302, 303 and 305);
 * 5) Theft and burglary prescribed in the Criminal Act (Articles 330, 331 and 332-342);
 * 6) Violence prescribed in the Act Concerning the Punishment of Violence, etc. (Articles 2, 3-5 and 6);
 * 7) Such specific crimes as prescribed in the Act for the Additional Punishment of Specific Crimes (Articles 5-2(1)-(6), 5-4(1)-(3), (5), 5-5, 5-8, 5-9 and 11);
 * 8) Sexual violence as prescribed in the Act on the Special Cases to Punish Sexual Violence (Articles 3-11 and 14);
 * 9) Narcotics-related crimes prescribed in the Act on Narcotics Management (Articles 58-61);
 * 10) Such sexual violence against minor and youth as prescribed in the Act on the Protection of Children and Juveniles from Sexual Abuse (Articles 7, 9, 10 and 11); and
 * 11) Military crimes as prescribed in the Military Criminal Act (Articles 53(1), 59(1), 66, 67 and 82-85).

Legal issues
The DNA information is one of personal information that could definitely identify individuals. Such personal information is, in principle, protected by the constitutional right to privacy or information self-determinism. This constitutional right is not regarded as an absolutely guaranteed right but as limited one.

Constitutionality of the Act
The DNA Act has legally justified DNA sampling and testing as well as obtaining and using of DNA information of prisoners and suspects arrested for the purpose of investigation and prevention of crimes. Supporters of the Act agree that even sensitive data of a limited group of culprits, who are likely to commit the similar crimes again, can be collected for the peace and security of society.

Some critics argue that the limitation of constitutional right should be in conformity with the constitutional principles for the limitation as follows:
 * Such DNA sampling and testing might be in violation of the principle of warrant requirement.
 * Most of all, the Act ignores the equality principle, the principle of prohibition of comprehensively legislative delegation.
 * The Act is in violation of the principle of proportionality which is constitutionally required for the limitation of fundamental rights.
 * It violates especially the principle of minimal damage and the principle of balance.