[27-1(B) KCCR 279, 2011Hun-Ma731, May 28, 2015]

A. Background of the Case

In this case, the Constitutional Court held that the provision of the Enforcement Decree of the Resident Registration Act (hereinafter referred to as the “Fingerprinting Provision”), which requires an applicant to put 10 fingerprints on an application for the issuance of his or her resident registration certificate, does not violate the Constitution.

All of the complainants turned 17 years old and received a notice that they would be issued a resident registration certificate. Being aware that an applicant must put his or her 10 fingerprints on the application for issuance of his or her resident registration certificate, the complainants did not apply for the issuance of their resident registration certificates. Instead, they filed a constitutional complaint against the provision, claiming that the Fingerprinting Provision violated their fundamental rights.

Before this case, the Court had held constitutional both the provision of the former Enforcement Decree of the Resident Registration Act, which also required the same fingerprinting, and the act of the Commissioner General of the Korean National Police Agency preserving, computerizing and using fingerprint information for criminal investigations (99Hun-Ma513 et al., May 26, 2005; dissenting opinion by three justices). More specifically, the Court had decided that the act of collecting, preserving, computerizing, and utilizing the fingerprint information does not infringe upon the right to informational self-determination, on the grounds that a legal basis exists for such an act under the Resident Registration Act and the Act on the Protection of Personal Information Maintained by Public Institutions; collecting and preserving fingerprints of all the people aged 17 years or older is the best means of identifying each individual in terms of accuracy, convenience, efficiency, etc.; and there is no other alternative to such means.

B. Summary of the Decision

The Constitutional Court decided that the Fingerprinting Provision is not against the Constitution, for the following reasons.

Although fingerprints are included in biometric information, fingerprint information serves as just one of the means of identifying an individual and contains nothing that makes it possible to conduct a personal, physical, social or

financial assessment of a person who is the subject of such information. Therefore, unlike other biometric information, fingerprint information can hardly be regarded as sensitive information closely related to the personality of an individual. However, in restricting the right to informational self-determination, it is desirable for the state to more expressly specify the subject, purpose, object and scope of collection, preservation, and use of personal information in relevant statutes, thereby clarifying the legal basis for the activities stated. Likewise, it is also necessary to make legislative efforts to expressly stipulate the aforementioned requirements for fingerprint information.

The purpose of putting 10 fingerprints on an application for the issuance of a resident registration certificate is to efficiently identify each individual and enhance the accuracy of identification. Compared with other means of identification, such as genes, iris and teeth, the fingerprint information is far less likely to infringe on human rights and is more simple and efficient. In addition, gathering limited information on criminals or partial fingerprint information is significantly less efficient and accurate in terms of identification than comparing 10 fingerprints. Given the aforementioned aspects, it is hard to conclude that the Fingerprinting Provision infringes upon the complainants’ right to informational self-determination.

Regarding this case, Justices Lee Jung-Mi, Kim Yi-Su, and Lee Jin-Sung, stated a dissenting opinion, as follows.

As biometric information indicating each individual’s uniqueness and identity, fingerprints cannot be arbitrarily changed by an individual. For such reason, it is necessary to clearly and expressly specify the scope for allowing the collection of fingerprint information in the legislation and to strictly interpret relevant provisions. However, the Fingerprinting Provision requires all 10 fingerprints although not all of them are needed to accomplish administrative purposes; allows the collection of fingerprints to maintain security, such as to conduct criminal investigations, without any legal basis; requires all people aged 17 years or older to put 10 fingerprints on the applications without placing limitations on the scope of people or the scope of fingerprint information collected. Hence, the Fingerprinting Provision violates the principle of statutory reservation and the principle against excessive restriction, thus infringing on the complainants’ right to informational self-determination.

C. Significance of the Decision

Human rights groups criticized the decision, claiming that the Constitutional Court had granted indulgences for the coercion of fingerprinting without any specific legal basis in this digital era when it was important to protect biometric information unique to each individual. Nonetheless, the decision is meaningful in that it reaffirmed the right to informational self-determination as a new independent fundamental right; and pointed out that legislative improvements

should be made toward expressly stipulating the requirements for the collection, preservation and use of fingerprint information in law.

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