도주선박죄의 적용범위와 몇 가지 문제점

Abstract

Article 5(12) of the Act on the Aggravated Punishment, etc. of Specific Crimes was enacted as the tendency of failure subject to the duty of measures spread out, even if the Rescue and Aid at Sea and in the River Act provides it in the case of the accidents in order to eliminate urgent dangers and disasters quickly with one's life and body resulting from any accidents. However, a precedent study of Crimes of Escape from Ships under Article 5(12) of the Act is still inadequate so that this paper examines the problems as follows under the interpretation with elements of the crime of escape from ships. First, the crime of escape from ships shall occur from 'the traffic of ships'. In this regard, it is natural that the traffic shall consider the definition of traffic as an act which is related with the movement of ships in oder to interpret it literally since it is not expressly stipulated in the Act. However, no substantive enactment has a controversial question and it shall be stipulated more clearly. For instance, if the scope becomes clear as 'during sailing a ship' or 'operating a ship' is revised, the applicable scope of crimes of escape from ships can be cleared so that a predictability is guaranteed. Second, in order to constitute the crime of escape from ships, the offense under Article 268 of the Criminal Act shall be committed. In other words, it shall generate the result of death and injury by occupational or gross negligence by negligence. However, it is a problem that the crime of escape from ships is established only if a result is generated by negligence, which makes the imbalance of penalty that the crime is punished additionally higher than a person who causes an accident intentionally. Therefore, it is reasonable to revise the provision proportionate with quantity of liability after distinguishing the case of generating an accident intentionally from negligently. Third, the scope of 'measures to rescue victims under the proviso of Article 18(1) of the Rescue and Aid at Sea and in the River Act shall be interpreted faithfully under the benefit and protection of the law and literal meaning of terms of the Act. The benefit and protection of escape shall be seen as the safety of victim's life and body who has death and injury resulting from an accident and the measure under the proviso of Article 18(1) of the Rescue and Aid at Sea and in the River Act is the one to rescue victims, which shall be seen as a series of the measures in order to protect victim's life and body.