2. B

Since the instant barge (the length 28m x 8m x 1.5m x weight 75 tons, hereinafter referred to as “instant barge”) is a mere structure that is not a ship, there is no obligation to report under the Marine Environment Management Act at the time of dissolution. Even though the instant barge constitutes a ship, Defendant A merely attempted to remove internal pollutants by drilling the barge before dismantling it on the land scheduled to be dismantled, and dismantled the barge after the control by putting it on the land, and thus, is exempted from the obligation to report. Nevertheless, the lower court erred by misapprehending the fact that the Defendants convicted the Defendants, thereby adversely affecting the conclusion of the judgment.

2. Determination

A. Whether the barge of this case constitutes a ship under the Marine Environment Management Act

1) Provisions of the Marine Environment Management Act

The main text of Article 111(1) of the Marine Environment Management Act (hereinafter referred to as the "Act") provides that "a person who intends to dismantle a ship shall prepare a work plan and report it to the Minister of Public Safety and Security by no later than seven days prior to the commencement of works, as prescribed by Ordinance of the Prime Minister, so that pollutants will not be discharged in the course of dismantling the ship." As to the definition of "ship", Article 2(16) of the Act provides that "any person who may use or be used for navigation on water or water (including those with an outboard engine) and any fixed, floating drilling vessel, and platform prescribed by Ordinance of the Ministry of Maritime Affairs and Fisheries." In order to understand the concept of a ship to which the Marine Environment Management Act applies, the understanding of the ship under the Ship

2) Ships under the Ship Act;

A) Concept

The term "ship under the Ship Act" means a vessel that is used or can be used for navigation on or under the water, and includes a whistle [referring to a vessel propelled by an engine (including a vessel with an engine attached to outside the hull and a vessel used mainly by an engine, which may be separated from the hulls and a vessel used by both engines), a vessel flying on the water surface (referring to a vessel flying close to the water surface by using the surface effect), a sailing vessel [including a vessel propelled by sail (including a vessel used mainly by both engines and sails) and a vessel used mainly by sails], a barge [referring to a vessel navigating by being towed or pushed by another vessel due to lack of self-way ability to navigate (Article 1-2(1) of the Ship Sticking Act).

The provisions on the kinds of vessels should be seen as a limited and listed provision rather than an example provision, so the remaining vessels except a baseline, sailing vessel, and barge (e.g., boats, log rafts, cameras, carbs, adjustment, etc.) cannot be seen as vessels under the Ship Act. The aforementioned definition of vessels is distinguishable from the position of the "ship under the Maritime Safety Act" (Article 2 subparag. 2 of the Maritime Safety Act) or the English case law (S.S.C. 3) which provides that all vessels (ves) are used or may be used as a means of water transmission and any other artificial device (1 U.S.C. 3). The definition of vessels is somewhat narrow than that of the "ship under the Sea Act" (Article 740 and the main sentence of Article 741 of the Maritime Safety Act) or the "ship containing a water craft (192).

B) the requirements of the vessel;

(1) 선박구조물 사회 통념상 선박이라는 구조물을 가지고 있어야 한다. 선박이란 사회 통념상 물 위에 뜨거나 물속에 잠겨서 사람과 물건을 실어 나르거나 일정한 용도에 사용할 수 있는 수상구조물을 말하므로, 수밀성(水密性)과 부유능력(浮遊能力)을 가져야 한다. 그러므로 부유능력을 상실한 난파선(難破船)이나 침몰선(沈沒船)은 구조 또는 인양할 수 없는 것이면 선박의 멸실에 해당하므로 선박이라고 볼 수 없으나, 구조나 인양이 가능한 동안은 여전히 선박이라 할 것이다. 건조 중인 선박은 항행의 용도와 능력을 갖추지 못하였으므로 선박이라고 할 수 없으나, 건조 중인 선박이라도 진수(進水) 후 항행이 가능할 정도가 되면 비록 완성 전이라도 선박법상 선박으로 볼 수 있다. 또한, 선박은 건조재질과 무관하므로 강선, 목선, 특수재질로 만든 선박도 선박에 해당한다.

(ii)the navigation of water or underwater;

A vessel shall navigate on or under the water. Therefore, a vessel shall navigate along the water, a vessel shall be included in the clar clarf, a vessel under the water, which navigates on or under the water surface, and a vessel mainly for flight, but it cannot be said that the clar clar clarf, a vessel mainly for flight.

(c) Navigation capacity;

선박은 항행능력을 갖추어야 한다. 자력(自力)으로 항행할 수 있어야 하느냐에 관하여 과거에 견해대립이 존재하였으나, 선박법 제1조의2가 부선(船)을 선박의 개념에 포함시킴으로써 독항능력불요설(獨航能力不要設)의 입장을 명확히 하였다. 그러므로 구조물이 항행에 사용되는 이상 추진력이 무엇인가 하는 것은 문제가 되지 않는다. 기관을 사용하여 추진하는 기선(機船), 돛에 의하여 추진하는 범선(帆船)뿐만 아니라, 자력항행능력이 없어 다른 선박에 의하여 끌리거나 밀려서 항행하는 선박[부선(舞 船)이나 피예선(史), 외부에서 원격조정에 의해 항행하는 구조물]도 모두 선박에 해당한다.

(4) The most fundamental standard to determine whether a specific structure is a ship is used for the building purpose and structure than for the size, form, loading capacity, and type of the ship. In determining the use of the ship, the U.S. court should take into account whether a structure has mobility and water transport capacity, whether it is exposed to maritime risks, whether it is fixed at one location, and whether it is consistent with statutes or other policy needs (Bunet v. Boh Bros. Bros. Co., Ltd. Co., 715 F.2d 196 (5th Cir. 1983); Macromot Inc., V. Broudrex, 679 F.2d 452 (5th Cir. 1982); e.g., e., 1980, Mar. 16, 2017; 1980.36rder of the ship to be used for navigation, 1983rder, 196.36.29)

“A ship as an apparatus used for navigation” shall be the shipment of people or things.

The location should be changed as desired at sea because it has the purpose and ability to move at all times.

③ Although a vessel is temporarily fixed, it is a structure designed to be used for navigation, if it has navigational capacity or can move to another vessel. Therefore, it is included in a vessel, such as dredging vessels, submarine resources excavation vessels, baselines, light or charter vessels for the purpose of performing works in a mobile place or using in addition to transporting goods or people, and a barge fixed and installed on the water for the purpose of mooring or storing vessels (the Ship Act was amended by Act No. 9870 of Dec. 29, 2009, and the proviso of subparagraph 4 of Article 26 was newly established and thus the Act was not registered).

④ There is a question whether a platform or floating structure with a special function in a port is a ship. A ship is not sailing while used for repair and building of a ship, and continuous fixed on the coast is not used for navigation, but can not be seen as a ship. However, a building which is used for navigation and is in mobility may be seen as a ship even if a ship is temporarily anchored at a specific place on the voyage. Furthermore, if a private ship which is not provided for navigation or used only for land purposes has been completely lost its navigation function, it cannot be seen as a ship any longer, but is still a ship with navigation ability, or a ship which temporarily stops for repair.

3) Determination

According to the evidence duly adopted and examined by the court below and the trial court, the following circumstances are revealed.

A) The instant barge is a structure with ‘bruptness' and ‘ ability to oil,' and seems to have been capable of water navigation as ‘brupted vessel' or ‘brupted vessel' which may be towed by another vessel. (B) The instant barge was used as a barge for supporting boarding and mooring the land and connecting it to the land, which constitutes a 'brupt floating structure type barge' (the Defendant argued that the instant barge is for supporting boarding, and it is a simple structure that only plays the same role as the bridge connecting the land and the ship. However, even if the barge was installed and used by fixing it on the water for supporting boarding in light of the aforementioned vessel requirements, the instant barge constitutes a structure that is designed to be moved as a towing structure, but it is a structure that is designed to move on the water, as alleged in the judgment of the Supreme Court on March 12, 2015.

C) Defendant A stated that “In order to purchase and dismantle the steel bus line at the port of high port (the instant barge) and to use it as the scrap metal, Defendant A deposited it in the direction of E in front of the coast located in Young-gu, Do.” It is reasonable to view that the instant barge constitutes a “ship as an apparatus that can be used for navigation” as seen earlier, as the shipbuilding purpose and purpose were to be seen to reach approximately 20km distance.

D) According to the ship’s nationality certificate entry of the instant barge, the Defendant also asserted that the instant barge’s name “in the “type of the ship” column is a “ship” [the Defendant asserted that the instant barge’s name was not assigned, and thus, cannot be deemed a ship. However, as seen earlier, it is only the result of the exemption from the obligation to apply for registration and registration of a part of the barge pursuant to Article 26 (Partial Excluded from Application of Ship Act) of the Ship Act, and it cannot be deemed that the instant barge’s name was not a ship under the Marine Environment Management Act solely based on the circumstance that the ship number was not assigned.

E) In light of the legislative purpose of Article 1 of the Act, “the duty of the people with respect to the preservation and management of the marine environment and the State’s responsibilities shall be clarified, and the basic matters for the preservation of the marine environment shall contribute to the prevention of harm caused by the deterioration of the marine environment and marine pollution, and the creation of a clean and safe marine environment, thereby improving the quality of life of the people.” In imposing the duty to report the dismantling of a ship as stipulated in Article 111 of the Act, there is no particular reason to treat the barge of this case

In full view of the above circumstances, it is reasonable to view the instant barge as falling under the “ship subject to duty to report when dismantling a ship” under Article 111(1) of the Act.

Therefore, this part of the Defendants’ assertion is without merit.

B. Whether the crime of this case constitutes a case where duty to report is exempted

1) The proviso of Article 111(1) of the Act and Article 73(2) of the Enforcement Rule of the Marine Environment Management Act (hereinafter “Enforcement Rule”) stipulate that the obligation to report shall be exempted in the case of dismantling a ship with a gross tonnage of less than 100 tons, which is removed from the land. Accordingly, the Defendants asserted to the purport that “In order to meet the requirements for exemption from the above obligation to report, the Defendants were trying to search the mouth inside the barge of this case and to bring it into the land after removing the pollutants, and thus, Defendant A’s act of cutting the barge constitutes a case where duty to report is exempted.”

However, in such a case, if a person subject to the duty to report dismantling a ship removes pollutants by cutting or dismantling a part of a ship on the sea and drawing them into the land, it may be exempt from the duty to report, and the duty to report dismantling the ship as prescribed by Article 111 of the Act may be mitigated. In this regard, the ship removed by cutting or dismantling the ship on the sea cannot be deemed to be a “ship with removed pollutants” under the proviso of Article 111(1) of the Act and Article 73(2) of the Enforcement Rule. Accordingly, the Defendants’ assertion that “if a person subject to the duty to report dismantling a ship is removed by cutting or dismantling the part of the ship on the sea to land after removing the pollutants, the requirements for exemption from the duty to report are satisfied.”

2) Meanwhile, according to the evidence duly adopted and examined by the lower court and the trial court, Defendant A did not report and controlled the instant barge at sea by 50 meters on the left side and 5 meters on the port side of the instant barge, and thereafter, Defendant A removed pollutants, such as oil, etc. loaded inside or outside the said barge by putting the said barge onto the land.

Considering the above facts in light of the various circumstances as seen earlier, it is reasonable to view that Defendant A actually commenced the dismantling work of the barge of this case where pollutants are not removed at sea without reporting, and it does not constitute “the case where the crime of this case is exempted from the duty to report” under the proviso of Article 111 of the Act and Article 73(2) of the Enforcement Rule. Therefore, the Defendants’ assertion on this part is without merit.

3. Conclusion

Therefore, the Defendants’ appeal is without merit, and all of them are dismissed in accordance with Article 364(4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Choi Ho-ok

Judges Dong-ju