수난구호법상 구조의무의 범위와 몇 가지 문제점

Abstract

Unlike land accidents, accidents on the surface of the sea or inland water cannot but lead to great tragedy like the Sewol ferry disaster unless the accidents are rescued quickly. As a result, in case that the accidents on the surface of the sea or inland water happen, the Rescue and Aid at Sea and in the River Act has been enforced in order to rescue quickly. In particular, The proviso of Article 18(1) of the Rescue and Aid at Sea and in the River Act provides that it imposes rescue duties on the captain and crew of ships, even though they have intention, negligence, or do not have any negligence so that in the case of implementing such rescue duties, they shall be punished. The proviso of Article 18 of the Act has several problems. First of all, it is reasonable enough to impose a rescue duty on the crew, etc who does not have any negligence with a shipwreck in rescue society under the principle of distribution of danger or in the dimension of societal solidarity. However, imposing a criminal punishment in the case of violating the rescue duty can be contrary to the principle of liability, no punishment without liability. Consequently, it is reasonable to regulate an administrative order punishment rather than criminal liability if there is no negligence. Secondly, the proviso of Article 18(1) of the Rescue and Aid at Sea and in the River Act provides that failure in the duty without distinguishing intention from negligence as an accident cause of shipwrecks has a same statutory punishment. However, a special law of the Rescue and Aid at Sea and in the River Act, the Act on the Aggravated Punishment of Specific Crimes provides that it punishes aggravatingly only if an accident is caused negligently. This regard needs to be revised because the principle of appropriateness or people's feelings of law seems to be contrary to the fact that a person who causes an accident intentionally has a lower punishment than a person who causes it negligently even though the former has more violation than the latter. Thirdly, a captain and crew have a same legal punishment unless they fulfill a rescue duty in the case of shipwreck. However, the captain has much more power than anyone else and on the contrary to this, the crew is imposed on the duty to obey to his or her superior so that in case that he or she does not fulfill the rescue duty, it is not reasonable that the captain and crew have a same legal punishment, which needs to be revised.