동력수상레저기구 음주조종과 관련한 형사법적 몇 가지 문제점

Abstract

By introducing the license system of operators of water-related leisure craft, the duty of conform to safety regulations of users of water-related leisure activities, and the registration system of water-related leisure business operators as the population of water-related leisure increases rapidly due to the improvement of level of national income and the diversity of water-related leisure activities, the Water-related Leisure Activities Safety Act was enacted on Feb. 8, 1999 (No.5910) in order to secure the safety and order of water-related leisure activities and to promote the sound development of water-related leisure business and has been enforced after being revised twenty times. However, the Water-related Leisure Activities Safety Act has the problem to violate the principle of legality since it is enacted abstractly. Therefore, it is reasonable to interpret as follows. Firstly, the Water-related Leisure Activities Safety Act enacted the penalty in the case of operating power-driven water leisure crafts without a license, operating while being drunk, etc., but it does not enact the definition of operation expressly. In this regard, the operation shall be used as a motor adjusted as the purpose and operation consistent with power-driven water leisure crafts. Thus, the operation is short to start the engine, but it shall be regarded as driving. Secondly, operating power-driven water leisure crafts while being drunk is punished and a person who requires a sobriety test is a police officer and a Si/Gun/Gu public official engaging in water-related leisure safety business. However, A sobriety test is an investigation. The investigation is an activity of investigation agencies that find and secure criminals, and collect and protect evidences in order to decide whether or not there is prosecution and its maintenance through discovering the suspicion of crimes. The Water-related Leisure Activities Safety Act regulates the subject of requiring a sobriety test expressly so that I think that there is formal justification. However, it is not reasonable that a Si/Gun/Gu public official engaging in water-related leisure safety business not to be related with investigations can take a sobriety test. Thirdly, The Water-related Leisure Activities Safety Act regulates that any persons shall be punished by imprisonment for not more than one year or by a fine not exceeding five million won under Article 56 in the same case of the operation without licenses(Article 56(1)), the drinking operation(Article 56(2)), the refusal of a sobriety test(Article 56(3)), etc. In addition, the drug driving is regulated on the punishment by imprisonment for not more than six months or by a fine not exceeding three million won. However, it is not resonable that operating without licenses is examined as the same illegality of the drinking operation or the refusal of a sobriety test as well as it is not reasonable to regulate that the legality of operating with drugs is lower than that of operating without licenses.