海洋環境犯罪에 對한 刑事法的硏究

Abstract

In the modern era, the development of human beings has been accompanied by environmental pollution. It is now threatening our lives. Pollution is a very important problem which we have to solve wisely. The boundaries of pollution are wide, and they are not limited to the land. The oceans have been polluted with dumped garbage, spilled oil, dangerous fluids, and contaminated gases.

My country, Korea, has no abundant resources in its land and is in a bad condition in terms of its ability to compete with other countries in economic growth. However, fortunately, my homeland is surrounded by water on three sides, which provides us with rich mineral resources, marine products, good waterways to the world, and beautiful scenery. Therefore, the nearby ocean is a precious area for us and for our future generations. If we lose our ability to benefit from the sea because of pollution, it will mean that we have abandoned our hope and even the basis of our lives. We have to preserve the health and viability of the oceans for eternity.

In terms of legal aspects, marine pollution relates to several issues, such as compensation for losses caused by pollution, administrative sanctions, and criminal punishment. The legal theory of compensation for loss has been mentioned many times in a number of studies. In most of those cases, the individual or entity found to have caused the marine pollution was punished by administrative sanctions, not by criminal punishment. Lately, the perception on the part of the public regarding marine pollution has begun to change. Many scholars consider marine pollution to be a crime like robbery and murder. The punishment for marine pollution now is aimed not only at accomplishing administrative purposes, but also to protect the lives of human being and to ensure their future health and well-being. Criminal prosecution is also a very effective method to attempt to prevent marine contamination. We can easily find examples which indicate that criminal prosecution for marine pollution dramatically reduces marine pollution. Therefore, it is very meaningful to study the issue of criminal liability for acts of marine pollution.

Criminal liability for marine pollution includes special aspects when compared with other criminal liability, especially land pollution.

The first idea to consider is that the substances involved in marine pollution come not only from ships or offshore structures, but also from the land or the air via rivers, lakes, and rain. When we study marine pollution, we should consider the land pollution problem, as well.

Second, the ocean is open space, and the pollution elements spread to all other oceans, regardless of international boundaries. Consequently, the efforts of one country to prevent marine pollution may be useless without the cooperation of other countries. Therefore, every country should try to co-operate with each other through treaties and legal assistance.

Third, it is difficult to prove the criminal liability in marine pollution because evidence is rare and difficult to gather. In criminal procedures, the prosecutor has the burden to prove the guilt of the defendant, but it is enormously difficult to gather evidence in marine pollution cases. If strict proofs are demanded for the cases, it is almost impossible to establish that a crime has occurred and to convict the perpetrators, let alone mete out punishment. For this reason, it is necessary to loosen the burden of proof in such cases.

Fourth, in marine pollution cases, jurisdiction is difficult to determine because there are many boundaries such as territorial water lines, contiguous zones, continental shelves, and exclusive economic zones

government enforcement has various rights according to different types of boundaries. Boundaries have important meanings in reference to marine crimes since, if a party who is responsible for marine pollution escapes a particular jurisdiction, there is no way to capture and punish the individual or entity. Moreover, there is no mechanism to guarantee that he or she or they will return to the jurisdictional area for prosecution. Therefore, governments should prepare clear regulations for jurisdictional boundaries, and negotiate with neighboring countries in terms of respecting of the principle of respect for international laws.

This paper deals with the special aspects of marine pollution crimes, including the elements mentioned above. This paper is composed of general criminal theory that relate to marine pollution in title 2, international treaties and conventions that relate to marine pollution, domestic and foreign legislations that relate to criminal liability for acts of marine pollution, and criminal liability in important domestic cases for marine pollution in title 3, various marine jurisdictions in criminal liability, and an explanation of government agencies and legal system dealing with the issue of criminal liability for acts of marine pollution in title 4.

This paper focuses on an analysis of our country's legal system, an analysis of the good points of marine pollution laws of other countries, and an examination of international treaties and conventions that relate to marine pollution. This study also points out problems in our legal system in relation to criminal liability for marine pollution, and suggests solutions. The elements mentioned below are several important matters in this area.

First, all person with interests involving the seas should develop a new understanding about criminal punishment for marine pollution. The commitment of acts of marine pollution should be deemed serious, dangerous, and blamable actions. We have to move beyond the step in which adjudication of these acts is considered merely technical punishment for violations of administrative policies.

Second, marine pollution laws have a 'both punishment clause' which can punish the real committer as well as his or her company or owner. However, according to the clause, it is impossible to punish middle supervisors of the company or owner, even though they may have taken part in ocean pollution. Actually, many countries have 'triple punishment clauses,' including punishment for middle supervisors. The legislators should seriously consider introducing this clause to our legal system.

Third, as indicated above, the burden of proof should be lightened so as to aid the prosecution of acts of marine pollution. There is a 'Special law in relation to punishment for pollution crimes', the code includes a provision to reduce the burden to prove the causation of these types of acts. However, even if this law regulates many contamination substances that cause a lot of pollution, it does not include marine contamination substances. Therefore, the prosecutor still has the major obstacle of proving that an act of marine pollution has occurred. The legislators should improve the law by the enactment of an amendment to broaden the application radius.

Fourth, we should look at international conventions. Even if they cannot be used as domestic laws for marine pollution criminals, they provide us with good standards from which to develop laws in reference to this serious problem. When our government reflects on the relationship between international conventions and our criminal laws with earnest, our country will be able to keep pace with international legal tendencies.

Fifth, it is necessary to improve the powers of the government agency system for marine pollution. In our legal system, the watchmen for marine pollution have no police power, while general police are not specified to investigate marine pollution. To solve this problem, police power should be given to the watchmen for marine pollution.

Sixth, we should also consider changing the marine security trial system for marine accidents. This trial system influences marine criminal trials, but only in marine security trials carried out by administrative courts, not by general courts. Only a final trial can be handled by the Supreme Court. The administrative court is not composed of judges, but government officials. Therefore, if we maintain this trial system, it will lead to the problem of the breaching of constitutional law since all Korean citizens have the right to receive trials presided over by judges.

Finally, we should keep in mind that the will to preserve the nature of our oceans is the first motto for the prevention of marine pollution. Then we should pay attention to the effort to improve the criminal system for marine pollution, and effectively regulate it. We can not dream of being an advanced nation without a realistic and efficient system to protect the oceans from marine pollution.