우리나라 海洋環境管理制度에 관한 立法論的硏究

Abstract

The sea surrounding the Korean peninsula plays an important role as a source of supply of marine products and more people use it as a leisure, sports, tourism and rest places. Therefore, to preserve the marine environment is duty and right to all of us.

Until now, marine pollution supervision activity carried out, which uncovering , regulating illegality such as illegally discharging pollution materials. But intentional activity is conducted in a period of bad supervisable times to avoid inspection. This policy converts supervision activity such as uncovering, regulation to marine pollution prevention activity such as guidance. As a result of that policy, report shows that polluting activity, which happened intentionally, carelessly is reduced. If we don't concentrate on preventing activity of marine pollution accident, much more severe pollution accidents may happen continuously and massive marine pollution accidents occur very often. That is why the amendment of the existing Act is desirable for preventing marine pollution and protecting marine environment ultimately.

International efforts for marine environment protection is now being globalized. Marine environment must be protected for all nations in the world because it is the human heritage of mankind. The sea doesn't have borderline and just has united "one" eco-system. Therefore international rules and regulations for protecting marine environment are indispensable regardless of nation's jurisdiction. And also, the national Act for marine environment protection should be amended for efficient control of marine environment.

Marine Pollution Prevention Act was adopted in December 1977 and entered into force in July 1978. In particular, I have worked as a personnel in charge of the Act and found out some problems during that time. It is necessary to unify ship inspection agencies, clear up ship's definition because many agencies have rights to inspect ships and scope of affairs is not clearly stated in the Article 100 of the Draft Marine Environment Management Act. The Korea Maritime Police Agency and Korea Marine Pollution Control Association also have the right of direction and supervision according to establishment of marine control public corporation. Thus, it needs to be legislated clearly that right of direction and supervision for marine pollution control is entrusted to Maritime Police Agency.

I point out some problems arising from the long-time execution of above Act as follows

First, legislative proposals for prevention of marine pollution are needed. marine environment green-ship and quotation system for a fine example marine facilities must be newly established. it is needed to legislate "examplary ship quotation system" and "examplary marine facilities quotation system(tentatively named) in order to spread marine pollution preventing effect, inspire pride about marine environment prevention of a shipowner, crew, marine facility establisher about marine environment examplary ship, examplary marine facilities. And it needs to extend the capacity of ships that must install waste oil storage tank, which covering from over-5 tons ship to over-2 tons ships. Therefore, it needs to legislate prevention plan of marine pollution reflecting the character of polluting materials. Moreover, it needs to reform the system on regulation of harmful micro-organism, discharging air pollutants from ships, using TBT anti-fouling that entered into force lately. and, it needs to guide legal disposal of waste oil as introducing waste oil restoration system. that is 'No Waste Oil, No Fuel Oil' (if ship's waste oil is not restored, can't supply oil).

Second, legal basis for national-scale basic plan to prevent pollution accident must be established. The Republic of Korea established "legal foundation for national-scale basic plan to prevent pollution accident" in 1999 according to OPRC agreement and must include the concerning articles, namely, articles against HNS spill accident, and legal foundation for cooperational prevention system between a government and non-government officials in the national act. Marine pollution accident is likely to influence neighboring countries because of strong tidal currents. It is very hard for states to get ready for the large pollution accident in advance and needs massive accounts to combat the pollution. That is why national cooperation system should be established between neighboring states such as adjacent Japan, China, Russia in Northeast Asian Sea through 'NOWPAP'.

Third, penalty and fine levy system must be reformed as legislative proposals for effective regulation to prevent marine pollution. For example, intentional and habitual discharges and slight pollution must be discriminated each other in fines. And also it needs to maintain balance of penalty between the Fishing Port Act and the Marine Pollution Prevention Act for discharging wastes into the ocean. extension of regulation for pollution source from lands is needed. Further it should be considered in terms of the types of pollution, jurisdiction, marine facilities, etc. and, the introduction of Civil Money Penalty complemented forced environmental criminal program of USA is needed for executing marine pollution penalty efficiently.

Fourth, it is desirable to consider the Act as a basic law for marine environment protection as 21st century future-oriented legislative proposals. The Marine Pollution Prevention Act is being implemented by National Maritime Police Agency, Ministry of Maritime Affairs and Fisheries. However, I suggest that it needs to be subdivided by the draft General Marine Environment Act, the Marine Waste Discharge Management Act, the Marine Pollution Prevention Act, etc. by reorganizing the pollutants for supplementing problems arising from consolidated management. And also I suggest that a national right and duty, and national responsibility for marine environment should be included in these acts. That is to say, the basic psychology that everyone wants to live in a comfortable environment should be incorporated into above mentioned acts.

And lastly, the national marine pollution Acts concerned were divided into two categories such as pollution from ships marine pollution prevention law, pollution from lands water quality preservation law. The legislation for integrated marine environment management is necessary in order to control marine pollution efficiently and synthetically. The Marine Pollution Prevention Act has been often amended according to revision of international convention MARPOL 73/78 and establishment of new international conventions. But it is not so easy to regulate marine pollution with the 'marine pollution prevention act' only. So that, the draft marine environment management act needs to be established to identify and protect the marine eco-system.