공해 상에서 발생한 선박충돌사고에 대한 대한민국의 형사재판관할권 고찰 - 유엔해양법협약 제97조 및 부산고등법원 2015노384판결을 중심으로 -

Abstract

Article 97(1) of United Nations Convention on the Law of the Sea(“UNCLOS”) stipulates “In the event of on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national.” In 2015, the Busan High Court, based on Article 97(1) of UNCLOS, sentenced as no criminal jurisdiction of Korea in the matter of Collision of the Vessels in Korean EEZ, where foreign vessels and crews had involved. I agree with the High Court’s decision, in that Article 97(1) of UNCLOS shall be applied to the case of deliberate offence as well as negligence offence, if such offence was acted in the event of a collision or any other incident of navigation concerning a ship, considering the provision as well as the legislative history of Article 97(1) of UNCLOS. However, It should be noted that the High Court had not addressed or determined the related issues to be dealt on the premise of the interpretation of Article 97(1) of UNCLOS. This paper examined the legal issues including determination in the Criminal Jurisdiction upon Article 97(1) of UNCLOS and Korean Criminal Act, and application of Article 97(1) and Article 220 of UNCLOS in regard to marine pollution.