야요이호 坐礁事件에서 본 海洋事故의 審判節次에 관한 연구: 違憲性論爭을 中心으로

Abstract

In administrative procedure to find the causation of a marine accident, korean government adopts quasi-judicial process by Maritime Safety Tribunal(MST) with the aim of improving the safety of life at sea and the avoidance of accidents alike in the future, through judgement of which seafarers or pilots who are to blame are punished and other persons involved are recommended for their contribution to the cause accordingly.

Having been established based upon Marine Accident Investigation and Tribunal Act(MAIT Act), MST which is the unique authority in korean government in the field of determination of the circumstance and cause of marine accidents, consists of 4 RMST(Regional MST) for first quasi-judicial instance and KMST(Korean MST) for second instance. The judgements of MST are admitted as an authoritative evidence for judgement by justice of judiciary and also used as a basis for final settlement of underwriter.

In view of the priority in applying different laws, MAIT Act takes dominion over administrative appeals act or administrative procedure act which are for recovery of the damage caused by administrative misconduct, since MAIT Act does not allow to follow any other act where there is any conflict between MAIT Act and others while administrative appeals act and administrative procedure act prescribes to allow to follow other acts provided they prescribes expressly otherwise.

Furthermore, there is no doubt that the process by MAIT Act is completely in conformity with the value system declared in constitutional law since MAIT Act is one of the acts for administrative appeals which is derived from the constitutional law.

In the process of administrative procedure, court of first instance is administrative court and the second instance is brought to the court of appeal and finally to supreme court. Where there is any conflict in patent right, the first instance of patent case is brought to patent court and to supreme court for final judgement. However the case to require cancellation of the judgement by KMST is directly brought to supreme court as is prescribed in (r)74.1 of MAIT Act.

By the hand, constitutional law declares that "people are given the right to have their legal process duly presided by the judge." but it should be construed that they are ensured to do so but not be understood that they are deprived of any opportunity available for judge (justice) of judiciary to reach rational decisions(judgement).

As is prescribed in (r)74.1. MAIT Act, where there is no consent to judgement by KMST, the person involved can bring it to supreme court in which justice also can examine the factual substances of the accident as well as legal matters. Therefore such right for the people to have their legal process is not hindered that means MAIT Act is entirely in conformity with constitutional law.

On the course of determining the circumstances and the cause of a marine accident, it usually happens that making decisions whether it occurred by intentional wilful act or by fault of the person involved is extremely difficult, which mainly results from short of evidence due to the characteristic of marine casualty itself. In this event, judge of MST determine the circumstances and cause of the accident with power given to him and this is occasionally subject to argument between the persons involved or concerned in the judgement by MST.

In order to avoid to face with those unnecessary and undesirable problem, more lawful, scientific, logic and fair judgement by MST should be made by means of carrying out followings

1. Evidence should be collected as many as possible at the stage of initial inspection by inspector to be submitted to judge of RMST, and judge of RMST would collect more on his power if they are considered insufficient. By doing so, fairness and validity of judgement could be accomplished and all the process of MST should be focused on finding the cause of the accident itself not on disciplinary punishment of the persons involved.

2. To ensure fairness and validity of judgement by MST, qualification for commissioner(chief judge of KMST) and judge of MST is needed to be enhanced and, in particular, commissioner should be from the staffs who has career of inspector or judge of MST with expertise in marine accident investigation.

3. In order to eliminate unnecessary and possible intervention from outsides of MST in determination of the cause of marine accident, status of judge of MST should necessarily be ordinary official without termination of their tenure, not extraordinary and their tenure should be extended to 5 years from 3 years which can be prolonged to their age of 60, termination age of service, provided that no significant misconduct or faults are committed.

4. Personnel management of judge of MST should be carried out independently without being influenced by improper intervention from outside. Recruitment or extension of tenure of judge should be promulgated by law and it should be observed throughly.

5. As the procedure for finding cause of marine accident by MST follows quasi-judiciary process, inspector and judge of MST are on opposite side each other, which inevitably require them to perform their duty independently without being influenced by others. Therefore, general management including personnel matters should belong to the general staff not inspector. And a staff for research purpose of the process of MST should be arranged for each judge.

6. In association with the event where persons involved in the marine accident brings the case to supreme court, amendment to MAIT Act should be made to clarify who are entitled to do so, the possibility of suspension of execution of judgement by MST and the degree of authoritativeness of judgement.

7. KMST should be directly governed by Prime Minister to ensure substantial efficiency of the recommendations by MST to any authorities of the government.

Looking back upon the case of the grounding of fish carrier M/V "YAYOI" which was brought to supreme court by the persons involved, skipper and chief engineer, upon the judgement by MST, it is considered quite natural for supreme court to reject their appeal since KMST reached the judgement after collection and analysis of enormous evidences for a long period of time.

Subsequently the judgement of the case of M/V "YAYOI" by KMST played an great role as an important evidence for judicial judgement in the both criminal and civil court for the case and it may well be said that judiciary has admitted and recognized lawfullness and validity of the process of MST as well as its authority as an expert agency of the administrative. In particular, the supreme court has also rejected the submission for application for adjudication on constitutional complaint by the persons involved in the accident, which clearly means that present procedures for finding causation of marine accident by MST is completely in conformity with the constitutional law. Since they cancelled their application for an adjudication on constitutionality of a law by themselves too, it seems that the argument on whether the process of MST is in conformity with constitutional law or not is cleared.

Finally, since it is extremely difficult to find the substantial fact and causation of marine accident due to lack of evidence, all the marine accident should be dealt by marine experts of MST prior to judicial judgement by justice in court. It can be admitted with no doubt that contemporaneous administrative procedure for finding the cause of marine accident by MST through quasi-judiciary process is far rational and efficient system and entirely in conformity with constitutional law.