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Permission and Its Limitations of Investigational Compulsory Urine Sampling

  • DONG-A LAW REVIEW
  • 2009, (43), pp.135-159
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

Shin, yi Chul 1

1건동대학교

Candidate

ABSTRACT

In view of latest tendency to gradually increasing number of narcotic crimes day by day in reality, it is undeniable that we have more needs for scientific tests to prevent such crimes than before. So, blind denial of compulsory urine sampling for criminal investigation is not necessarily advisable even from the standpoint of discovering substantial truth. On the one hand, however, the discovery of substantial truth may be the ultimate goal, not the only goal, so it should be subject to appropriate legitimate procedures. Thus, simple a chemical analysis on hair is often helpful to justify evidence for in vivo existence of narcotics, apart from urine analysis. But unless there are reliable and epoch-making estimation techniques discovered and developed to perform considerable analysis just in the above methodology, it seems difficult to entirely reject compulsory urine sampling that is subject to very demanding requirements and procedural standards, as described above. And on the other hand, it is necessary to prevent investigational parties from their abuse or misuse of compulsory urine sampling by rejecting any evidential power of proofs obtained from compulsory urine sampling in violation of these requirements and procedures. Ultimately, it is important to pursue a legislative compromise in favor of harmonization between two conflicting doctrines, i.e. achieving investigational goals and protecting human rights. According to analytic theory of current criminal laws, it is possibly appropriate and advisable that these characteristics of scientific investigation means should be individually identified to determine whether the investigation is voluntary or compulsory, and if it is compulsory, it should be regulated under one or more rules of restriction, seizure and investigation, and verification as a part of compulsory investigation means stipulated in current criminal laws. But ultimately, it is required to legislatively delineate these scientific investigation means and provide formulated regulations over strict permission standards and procedures, so that they can be encompassed to the highest extent as possible within statutory framework.

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