선박 충돌시 조치의무의 범위와 몇 가지 문제점 - 선원법을 중심으로 -

Abstract

In case of ship collision, spontaneous reaction is difficult due to weather of the collision site, equipment, etc., which poses struggle in rescuing human and material resources and may lead to a catastrophe. Therefore, in the Seafarer’s act, certain responsibilities are imposed on captain and if violated, criminal punishment is applied. But duty to action in ship collision stated in the Seafarer’s act has complications as following. First, to fulfill the duty to action, ships must collide and it is applied only when the ‘ships’ are under the Seafarer’s act. Therefore, in collision between a ship under the Seafarer’s act and another that is not, this clause doesn’t apply, which is irrational in promoting safety of life and body. Second, imposing duty to action on those who are not responsible for the collision can be conceded in regards of social solidarity and risk allocation. But setting method of restriction in case of violation as punishment can be incoherent with the principle of responsibility which states no punishment if not responsible. Third, despite the fact that size of reproach when not performing duty to action after creating ship collision on intention is different from when not performing duty to action after creating ship collision due to negligence, pronouncing both cases with same statuary punishment is unjust. Fourth, in ship collision, necessary measures should be taken in saving lives and ship. But as necessary measures have danger to oppose the principle of clarity and can be understood arbitrarily, it should be understood in benefit of the criminal law. Benefit of the criminal law should be seen as individual legal interest and in regards of safety of life and ship in ship collision and within such benefit of the criminal law, necessary duty to action should be established.