선원법상 구조조치의무위반죄의 몇 가지 문제점

The Seafarers Act was revised on January 6th, 2015 after the sinking of Seweol ferry had made hugh losses of life in 2014. This current Act tightens up on criminal punishment for a captain and seafarers who do not take all the measures necessary to rescue human lives, a ship and cargoes where the ship is in critical danger. Unfortunately, there are several flaws in both the Articles regarding the above-mentioned criminal punishment, per se, and their interpretation. First, Article 161 of the Seafarers Act which criminalizes the violation of the duty to rescue distinguishes the statutory penalty of seafarers from that of a captain; a captain shall be punished by imprisonment for life or for more than three years but seafarers shall be punished by imprisonment for more than three years in case that loss of life results from the violation of the duty to rescue. Although the Act grants a captain more powers and obligations in comparison with seafarers, there should be no difference in determining the duty to rescue between a captain and seafarers when rescue of human lives due to an critical danger is required. Therefore, a captain and seafarers under the above-mentioned situation, like bodily harm or damage to a ship or cargoes due to the violation of the duty of rescue, should be regulated by the same statutory penalties. Second, Article 161 of the Act does not provide criminal responsibility for the captain who does not perform the duty to rescue if there is no casualty or damage to a ship or cargoes while Article 166 of the Act prescribes punishment on seafarers under the same circumstance. Accordingly, this inequality between two provisions causes a significant problem that the captain who leaves the ship or does not take necessary measures for rescue cannot be punished although seafarers leaving the ship or disobeying orders for rescue would be punished. Third, the statutory penalties regarding crimes of violation of the duty rescue are not properly imposed in that the provisions on the crimes do not distinguish intent from negligence. Occurrence of danger to a ship due to negligence, as professional negligence resulting in death or injury, constitutes the crime of escape from a ship under the Act on the Aggravated Punishment, etc. of Specific Crimes. However, a person who intentionally causes danger to a ship and harm human life or body, in spite of harsher condemnation, would be punished under the Seafarers Act which provides less penalties than the Act on the Aggravated Punishment, etc. of Specific Crimes does. Fourth, the Seafarers Act has a serious problem that its application is limited because the Act without any definition on a ship refers to a ship of the Republic of Korea or a foreign ship chartered on condition that she will acquire Korean registry. Fifth, the Seafarers Act imposes the duty of rescue in case of danger to a ship regardless of negligence. Although imposition of the same obligation might be justified, it is not reasonable to admit the same liability. It might be unconstitutional from the perspective of the principle of liability that a person without any negligence and a person with intent or negligence are criminally punished based on the same criteria.