해양사고의 조사 및 심판에 관한 법률상 징계책임

Abstract

The Disciplinary Liabilities

in the Investigation and Inquiy to Marine Accidents Act

The Marine Accident Inquiry was established as an administrative tribunal for protection of the human lives, property and environment at sea in accordance with the Investigation and inquiry to marine accident act.

The primary duty of Marine Accident Inquiry to clarify the cause of marine accident, which may cause great financial damage to vessel and cargoes and often including precious human lives and marine pollution, so that the concerned parties may consider counter measures.

But the Marine Accident Inquiry Agency(hereafter, called as "MAIA") discipline the marine officers and/or pilots for their behavior if a marine accident is considered to be caused by their intentional action or negligences on duty and recommend a persons other than marine officers and/or pilots who involved in causes of a marine accident in order to accomplish above-mentioned purposes.

There is many functions in the adjudication of the MAIA, such as the fact-finding of a marine accident and the legal interpretation concerning safety of sea traffic, the settlement of disputes which may arising from the marine accidents at times.

And also, the adjudication of the MAIA, which were accumulated for a long time will be the good code for mariners to avoid any accident and/or incident at sea.

In view of the above functions and duties, the MAIA is not only a navigator but also a law-maker and a judge.

The MAIA have disciplined 1,901 persons of marine officers and pilots for the past 5 years, such disciplinary punishment have to enjoy strictly to avoid injury of inquiree's rights and interests even though it is required from the public interest.

The procedures of the inquiry is not required to follow the general provisions of criminal code and criminal action, but it is desirable that the provisions concerning discipline should be dealt with as a principal of criminology in view of the characters.

In spite of the above matters, MAIA is in danger of forgetting the import of disciplinary punishment because their primary duty is to clarify the cause of marine accident.

This thesis aims at indicating the direction in which the provisions concerning disciplinary punishments have to be interpreted by means of the legal dogmatics.

This thesis consist of 7 chapters, which are the introduction of this study in chapter 1, legal ground of disciplinary liabilities and the general view of the Marine Accident Inquiry systems in chapter 2, the legal position of the inquiree in chapter 3, the constituent elements of the disciplinary punishment to the inquiree in chapter 4, the effects of discipline to the inquiree in chapter 5, a propose to harmonize between disciplinary and criminal liabilities of seaman who have been occurred marine accident by their negligence in chapter 6 and the conclusion of this study in chapter 7.

The conclusion of this study reveals as follows

1. The limitation of causations should be extended or reduced as per cases, i.e. it is better to extend limitation as far as possible when MAIA make a decision to clarify the cause of marine accident so that counter measures may find out, but it is better to reduce limitation when MAIA sentence the inquiree disciplinary punishment against their behavior in order to prevent unconscionable injury.

To presume the negligence-sharing onto the parties interested by the volume of discipline to the inquiree which was shown in the adjudication should be kept away because there are some difference between the disciplinary punishment to the inquiree and the liability- sharing to the parties interested.

2. The constituent elements of discipline shall be interpreted strictly, otherwise, the right and interests of the inquiree will be injured.

Furthermore, it must be proportioned to public interest when the inquiree was disciplined as a precaution because it can hard to determine the possibilities of recurrence in this case.

Especially, to reduce the degree of the MAIA's arbitrariness is required because presuming negligences is left to their discretion under the circumstance that the duty of care and diligences are not able to make a type, which can be applied at any cases.

3. To assess the volume of discipline according to the gravity of the inquiree's violation is reasonable, but it is required to consider the extent of damage, the negligence of injured party, whether the post-action was taken or not and whether an agreement was came to or not at same time.

4. As the disciplinary punishment by MAIA is under a category of the enforcement of regulation to the persons who were involved in traffic at sea which is very useful in preventing marine accident, too slight disciplinary punishments that object may be impaired, should be avoided as well as efficient enforcements of regulations are required to minimize the occurrence of the marine accident.

5. To reduce the criminal liabilities of the seaman which may arising from the marine accidents by the negligence is advisable in consideration of their legal position which they have to pay not only criminal liabilities but also civil and disciplinary liabilities for a behavior.

It is desirable to transfer the provisions of the crime of accidental homicide, the crime of traffic interference, the crime of an accidental fire which was occurred with marine accidents in the criminal code to the Seaman's Act or Sea Traffic Safety Act and to be free from such penal sanction if such a crime have been violated by slight negligence, in consideration of the maritime policy to be protect the seaman, the gravity of blameworthy and the balancing of legal interest, etc.

In this case, the deterrent effect of the criminal sanction can be alternated by the disciplinary punishment and/or the civil liabilities.