해양경비법상 해상검문검색에 관한 연구

Abstract

The maritime police play a role to maintain the peace and order of the ocean in Korea by performing various duties such as maritime safety, prevention and investigation of maritime crimes, search and rescue missions of maritime disasters and prevention of marine pollution in wide areas of the ocean 4.5 times as wide as the land. The rights for boarding, questioning and searching by the maritime police in ships should be explicitly defined in the related Acts in order for the maritime police to lawfully perform their tasks. However, the maritime police have performed them without an explicit legal basis. In 2012, the maritime policing act including the provision of boarding, questioning and searching is enacted to ensure the legality for exercise of maritime police power. Officers having the jurisdiction over land have stopped a criminal suspect and asked questions by means of provision of police questioning in the existing performance of police functions act. However, because the provision of police questioning requires the agreement of subjects, there are many problems in the efficacy of law enforcement. But since there are many risks such as escaping by crossing the border or destroying evidence by throwing it away into the sea, the maritime policing act forcibly enforces the law by imposing a fine if subjects resist the boarding, questioning and searching such as stopping vessel boarding, questioning, and searching by the maritime police. In addition, if a threat is simply imposed on maritime safety without relevance to the crime, it enacts the provision for boarding, questioning and searching in the vessels with unstable navigational state or carrying WMD. But the right of maritime police prescribed by the provision of boarding, questioning and searching by the maritime police in the maritime policing act is miniscule compared to ‘at any time go on board of any vessel subject to … any law of the US’ prescribed by the 14 U.S. Code §89 (a) and ‘the ship is stopped to perform safety examinations or ask questions, if necessary’ prescribed by the Japan Coast Guard Act. Moreover, since we do not have regulations similar to ‘the officers of the Coast Guard … is deemed to be acting as agents of the particular executive department’ prescribed by the 14 U.S. Code §89 (b) and Japan Coast Guard Act 15, we have potential problems of not exercising legal enforcement rights for some acts. If this problem is improved, the maritime police can exercise legal enforcement more effectively in the ocean where potential high-risks are present compared to those in land.