공해상 선박충돌사고 관련 최근 사례들에 관한 소고 -형사재판권 중심으로

Abstract

Unlike incidents of ship collision on territorial waters, incidents of ship collision on the high seas are required to confirm which country has criminal jurisdiction over the pertinent case. Article 97(1) of the United Nations Convention on the Law of the Sea (UNCLOS) stipulates that either the flag State or State of which the perpetrator is a national has criminal jurisdiction over the perpetrators. But debates over the interpretation related with the article are still intense. This study is to review various issues related to Article 97(1) of the UNCLOS. First, in light of the Lotus case which set the legislative background of Article 97(1) of the UNCLOS, it is difficult to say that each country of the international community has given up its criminal jurisdiction for intentional criminals. Therefore, the aforesaid Article is unable to be applied to intentional offenders. Second, in light of the current legal system, the flag of convenience States cannot be deprived of criminal jurisdiction. However, if the flag State or State of the perpetrator does not exercise criminal jurisdiction, the victim’s country of nationality may be able to exercise complemental criminal jurisdiction. Third, Article 97(1) of the UNCLOS declared the flag state doctrine, but Article 220(6) of the UNCLOS recognized the criminal jurisdiction of coastal countries in the event of serious damage to resources in the exclusive economic zones of coastal countries. Therefore, in the event of critical damage in the exclusive economic zone, Article 220(6) of the UNCLOS shall apply first. When Article 220(6) of the UNCLOS cannot be applied first, Article 97(1) of UNCLOS may then be applied. In the Ernest Hemingway ferry case (Busan District Court Decision 2015Gohap52, Jun. 12, 2015; Busan High Court Decision 2015No384, Dec. 16, 2015), the court ruled that Article 97(1) of the UNCLOS can also be applied to intentional criminals; however, this seems to be an unreasonable conclusion. In addition, in this case, the court found the defendant guilty of violating the Marine Environment Management Act without any explanation, but such court decision was unlawful, because even in accordance with Articles 220(6) and 97(1) of the UNCLOS, criminal jurisdiction of the Republic of Korea cannot be recognized. In addition, in the Inspiration Lake case (Daegu District Court Pohang Branch Decision 2017Gojung222, Nov. 18, 2017; Daegu District Court Decision 2017No52222, Jun. 22, 2018; and Supreme Court Decision 2018Do11014, Jun. 13, 2019), the court ruled that the Republic of Korea had criminal jurisdiction over the case. But Article 220(6) of the UNCLOS stipulates that criminal jurisdiction of coastal countries exists only when there has been serious damage to resources in the exclusive economic zone. Therefore, the Republic of Korea did not have criminal jurisdiction in this case, as there was no serious damage in the exclusive economic zone. Furthermore, in the Koeta case (Tongyeong Branch of Changwon District Prosecutors’ Office Order 2019Hyongje1727, Mar. 22, 2019), the prosecution decided that the Republic of Korea did not have criminal jurisdiction under Article 97(1) and 220(6) of the UNCLOS, and this was reasonable conclusion. The prosecution also did not indict the company owning a Panamanian national ship by applying Article 220(6) of the UNCLOS; however, this was also an unreasonable conclusion. The prosecutor should have indicted the company because Panama had no intention of exercising its criminal jurisdiction over the case.