Abstract
With the advancement of DNA science and technology, DNA evidence in addition to providing important clues to criminal investigation, the more often is the key evidence in the criminal procedure the accused convicted. Both there are provisions on DNA compulsory sampling in the Code of Criminal Procedure and the DNA Sampling Act, the latter is just amened in January 2012, but relevant norms had caused undue interference with fundamental rights guaranteed by the Constitution. DNA compulsory sampling is a kind of bodily investigation,which is a judicial compulsory measure, and belongs to the scope of "evidence obtaining",not " evidence investigating". DNA compulsory sampling may infringe upon the fundamental rights, including the right of personal liberty as enshrined in Article 8 of the Constitution.The second is body right, that is the right of bodily integrity. Furthermore, because DNA is highly recognizable, and on which contain much genetic information,so will thus conflict with the right of privacy. Therefore, the constitutional review should adopt strict standards . The Code of Criminal Procedure and the DNA Sampling Act are two different systems of DNA compulsory sampling, with each other should be no relationship of "special law and general law" or " new law and old law." The legislative purpose of the former is to investigate crimes for specific cases; the legislative purpose of the latter is to establish the DNA database . The current provisions on DNA compulsory sampling in the Code of Criminal Procedure are not definite enough, nor adopt the judge retained principle, and also lack the norms about destruction of the samples and records. There are no clear guidelines whether the records should be enter into the DNA database or not.Furthermore,the range of DNA compulsory sampling regulated by the DNA Sampling Act is unable to meet the legislative purpose closely.Since the main purpose of compulsory sampling regulated by the DNA Sampling Act is to prevent possible future crime, due to the uncertainty is very high, more rigorous requirements is necessary. Thus, DNA compulsory sampling,whether according to the Code of Criminal Procedure or the DNA Sampling Act, should shift to adopt the judge retained principle, and in all aspects of the sampling range,sampling procedure,samples analysis,records use and preservation,etc.,should have more adequate and complete specifications, to comply with the constitutional principle of proportionality.