해양안전심판 심판변론인제도의 문제점과 개선방안 - 특허 및 조세심판과의 비교 · 분석을 중심으로-

Abstract

Article 4 (1) of the Administrative Appeals Act stipulates that “Unless it is necessary given the extraordinary and exceptional nature of a specific case, other statutes shall not provide for a specialized administrative insubordinate procedure that substitutes the administrative appeals under this Act, or any exceptional case of the administrative appeals procedure under this Act.” It means that the specialized administrative insubordinate procedures may substitute ordinary administrative appeals procedure when necessity for such special procedures is recognized on the basis of the extraordinary and exceptional nature of a specific case. Currently, there are three kinds of such specialized administrative insubordinate procedures called ‘specialized administrative appeals’ put under the jurisdictions of the Korean Maritime Safety Tribunal, the Tax Tribunal, the Korean Intellectual Property Trial and Appeal Board. Among these specialized administrative appeals, the appeals submitted before the Korean Maritime Safety Tribunal are a special type of administrative appeals in the sense that not only the cause of a marine accident is determined but also the disciplinary action against ship officers or pilots is decided. For this kind of specialized appeals, the Korean Maritime Safety Tribunal adopts oral pleadings, an adversary system, and investigator’s monopoly in requesting for inquiry in relation to the tribunal process. When it comes to the problem of the equality between the investigator and the appellant during the appeals procedures, it is difficult to say that they are equal as the former has the authority to investigate the person involved in a marine accident. Therefore, the active use of the inquiry counsel system is important for securing the appellants’ right of defense and the legitimate relief of their rights. This study examines the inquiry counsel system of the Korean Maritime Safety Tribunal from various aspects and compares it with the systems of the Tax Tribunal and the Korean Intellectual Property Trial and Appeal Board to identify problems of the Korean Maritime Safety Tribunal’s inquiry counsel system. On the comparative analysis of these systems, it will suggest improvements for the inquiry counsel system adopted by the Korean Maritime Safety Tribunal.