세월호 사고에 대한 형사재판의 쟁점

Abstract

In this paper, we have reviewed issues of criminal trial related to ‘Sewol catastrophe’, while briefly introducing catastrophes and their handling process that are similar to the ‘Sewol catastrophe’ that took place in and out of Korea. Details may differ, however in similar cases that took place in about every 20 years in Korea, there was only ruling of ‘professional negligence resulting in death or bodily injury’ for the seamen. Additionally for the case of ‘MS Estonia’ the Swedish government did not even sue the seamen. For ‘The Herald of Free Enterprise ferry’ English government did not make law for seamen's severe punishment nor additional punishment but legislated ‘Corporate Manslaughter Act’ for the navigation companies that neglected safety of their passengers but was busy trying to make money. However for the Sewol catastrophe seamen are being held as murderers and this is unacceptable. Furthermore decision of members of the National Assembly giving additional punishment to only powerless seamen, not the strong navigation company nor the board members, is far away from the international trend. To conclude by simply summarizing the above is as follows. First, for the approval of the murder, captain and other crew members did not recognize the severity of the accident to concede the intention of the murder and additionally the captain misapprehended that he ordered an escape. Accordingly the murder cannot be approved willful. Particularly we should focus on the fact that in the early stage of the accident captain ordered to “Put on the life jacket and stand by at the cabin.” In this case when the ship sinks, boarders helplessly drown and this is a common knowledge to crewmen. If the captain was aware of the fact that the ship is going to sink and made this order, without further examination the murder's willfulness will be approved. However the captain did not make the order in the purpose of a murder but was trying to announce additional order to escape, however missed the time for the announcement. Accordingly it is a ‘professional negligence resulting in the death or bodily injury' that should be approved, not the purpose of a murder. Second, relating to neglect resulting in death, the captain and other crewmen can be the subject of the neglect according to the seamen law and contract, however it is doubtful that they were aware of the passenger's condition and even when we put this question aside, inferring from the fact that the captain ordered to abandon the ship, it is found hard to approve the intention of neglect. On the other hand the act of captain and other crewmen, which is to leave the lifeboat while leaving passengers, can be relating to neglect resulting in death, though this case corresponds to the emergency evacuation or at that time their legal act can’t be expected. Third, as murder and neglect doesn't seem approvable, the blame of professional negligence resulting in death or bodily injury is the last to be judged. Captain has a duty to contrive safety of the vessel by law. However the captain did not fully carry out the duty to exercise due diligence to make a ship seaworthy before departure, by that Sewol departed with a faulty self-springing and this situation in combination with the third officer's lack of command in steering and helmsman's lack of ability to steer, caused the Sewol catastrophe. By not performing duty to exercise due diligence to make a ship seaworthy led to overloading and time related deterioration, by this fact it is clear that the captain, the third officer and the helmsman is to blame. Accordingly the captain, the third officer and the helmsman are joint principal offender by professional negligence resulting in death or bodily injury, and other crew members can be found innocent. Fourth, Kwangju District Court recognized the chief engineer to guarantee personal status for naturalis ratio, and admitted murder for omission. On the other hand by following the precedent or theory of the Supreme court, guaranteeing personal status for naturalis ratio is limited to only demand for controling the danger and there is no responsibility of active aid. By following judical precedents by this day, admitting murder for the chief engineer is a tall order. In conclusion, relying on accurate evidence and in intersubjective perspective, just and reasonable finding of fact relation, and interpretation and application of law are needed.