해사법상 처벌규정의 문제점과 개선방안

Abstract

This paper examines the propriety of statutory punishment under current maritime law such as the Marine Environment Act, Maritime Safety Act, Seafarers Act, Ship Safety Act etc, and proposes an improvement plan after reviewing the problems of improper legal penalties related to penalism, penal populism, symbolic criminal Law and so on. The paper could be summarized as follows. First, statutory punishment under current maritime law such as the Marine Environment Act, Maritime Safety Act, Seafarers Act, Ship Safety Act etc could be considered as being too heavily imposed or an unnecessarily redundant legislation in terms of both comparative law and criminal law. Such statutory punishment under maritime law seems to be relevant to penalism, penal populism, symbolic criminal law and so on. Second, maritime law’s statutory punishment, which is under the influence of penalism, penal populism, symbolic criminal law etc needs to be reasonably modified based on normative, social communication that is stabilized in terms of both time and content. Research findings and precedents from the field of criminology and comparative jurisprudence could be credible source to refer to when modifying the statutory punishment under the current maritime law. Lastly, the range of statutory punishment under maritime law should be within the degree to which judge could properly sentence taking both responsibility and punishment sensitivity into consideration. Thus, among maritime law’s statutory punishment regarding negligence criminal, administrative penal should be changed to administrative fine as much as possible, and imprisonment should be changed to fine if possible. Also, the upper limit of maritime law’s statutory punishment should be enough to stay within the degree to which the effect of norms could be carried out taking into account both the grounds for mitigation of punishment and the maximum responsibility of individual acts that is expected when punishment is not mitigated according to the punishment sensitivity of the criminal. The lowest limit should be enough to stay within the degree to which the effect of norms could be carried out taking into account both the maximum mitigation of responsibility and the mitigated responsibility of individual acts according to the punishment sensitivity.