해양환경 관련 형법규정 연구

Abstract

It steadily sticks to strengthen national regulations on marine environment on the background of the people's increasing needs and interests and the trend of enforcement of International regulations for the marine environment. The most of International conventions on the marine environment are converted into national regulations considering that the shipping's characteristic is a world wide competitive industry. However it appears unusually to result in more strict national rule than the relevant International Convention.

The criminal law on the marine environment is not exist independently regime but exist a kind of punishment clause of the administration law on environment. That is why presenting absolute evidence for the violation of the environment law is very difficult. For the criminal law on marine environment is less interested of the society rather than other environment sector such as air, drinking water, noise, soil etc. the systemic approach on the criminal law of the marine environment is considered short owing to the lack of the restricted concerned interests.

This study is intended to add a step to progress development of the works on the articles and review the definition and the feature of marine pollution, the pollutant and influence of marine pollution, the comparison national rule with international conventions on marine environment and the criminal rule on the marine environment.

Unfortunately it is main reason to cause to marine pollution that the influx from land-based pollutant rather than from the sea activities. The GESAMP report on the pollutant resource lead to marine pollution stated that only 23% of whole resources is from the sea-related activities, the rest are from the land-based. Especially only 12% of them results from the sea transportation.

But, even though the accident happened rare and the percentage in the resource of marine pollutant is not so significant, more strict regulation & responsibility for the marine pollution are imposed because oil pollution from the sea transportation leads unexpectable and intensive damage to the natural environment and economic.

In this context, the national regulation on the prevention of marine pollution which is most important regulation in the area for the protection of marine environment, imposes heavy punitive clauses on the illegal act of discharge from the ships and marine facilities. However the punitive clause imposes to be seemed discriminated who the pollutant actor is.

The punishments varies from 1 year or 10 million won to 5 year or 50 million won in accordance with whether the illegal actor is ship's person or marine facility's person. This difference is considered unreasonable clause to impose 5 times punishment for the same illegal act affected on the environment.

On the contrary the regulations of the Japan and United States on marine pollution prevention have same punishment for the illegal actor whoever it is.

Considering the benefit and protection of the criminal law on the environment is environment itself and the principle of the equity of the law, it is reasonable to impose a graded punishment in proportion with whether it is intentional or not and the scale of the pollution damage, rather than the illegal actor.

My national regulations on marine environment come from the International conventions. However, there are some misunderstanding to introduce international conventions into national regulation. For example, the meaning is not discriminated "dumping" in the 1972 London Convention from "discharge" in the MARPOL 73/78 convention resulted from introduction two international convention into one national regulation and the meaning "sewage" in MARPOL 73/78 Annex Ⅳ, "garbage" in MARPOL 73/78 Annex Ⅴ and "waste" in 1972 London convention are unified as "waste" under national regulation. These misunderstandings lead unreasonable restrictions to the people compared with international convention.

The regulation on the environment protection will be more strengthening and diverse in the future. The Anti-fouling substance convention regulating TBT in marine ecosystem and The Ballast Water Control and Management convention regulating transfer harmful foreign species through ship's ballast water await to take into force to the international society. In this context it is required more study on the international convention before introducing national regulation to prevent misunderstandings between two regimes and training more expert on the matter.