Since the instant barge (28m in length x 8m x height 1.5m, weight 75t, hereinafter “instant barge”) is a mere structure not a ship, there is no obligation to report under the Marine Environment Management Act at the time of dissolution. Even if the instant barge constitutes a ship, Defendant 1 merely attempted to remove an inner pollutant by drilling the barge before dismantling it on the land scheduled to be dismantled, and dismantled the barge after the control by putting it into the land, and thus, is exempted from the obligation to report. Nevertheless, the lower court convicted the Defendants, which erred by misapprehending the facts and adversely affected 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 “Act”) provides that “a person who intends to dismantle a ship shall prepare a work plan as prescribed by Ordinance of the Prime Minister to prevent the emission of pollutants in the course of dismantling the ship and report it to the Minister of Public Safety and Security by no later than seven days prior to the commencement of works.” Article 2 Subparag. 16 of the Act provides that “a ship shall be used or used for navigation on water or water (including those with an outboard engine) and a fixed, floating-type drilling vessel, and platform as prescribed by Ordinance of the Ministry of Oceans and Fisheries.” In order to understand the concept of a ship to which the Marine Environment Management Act applies, a ship should be understood in accordance with the Ship Act and thus, a ship should be seen first.

2) Ships under the Ship Act;

A) Concept

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

The provisions on the kinds of ships should be seen as a limited and heating provision rather than an example provision. As such, the remaining ships (e.g., boats, log rafts, carp, carp, adjustment, etc.) except for baselines, sailing ships, and barges cannot be seen as ships under the Ship Act. The aforementioned definitions of ships are somewhat narrow compared to the position of the "ship under the Sea Act" (Article 740 and the main sentence of Article 741 of the Commercial Act) or the "ship under the Maritime Safety Act" (Article 2 subparag. 2 and 2 of the Maritime Safety Act), which defines ships as "any other ships that are or may be used as water transport means" (1 U.S.C. § 3) or English case law (Steman v. Scid [192] and are distinguishable from the position 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 water aircraft."

B) the requirements of the vessel;

(1) Vessel structures

A vessel shall have a structure that is a vessel under social norms. A vessel refers to an aquatic structure that can open on or under the water and lay down a person and goods, or use them for a certain purpose, so it must have water smuggling and floating capacity. Therefore, if it is impossible to rescue or salvaging a sunken vessel or a sunken vessel which has lost floating capacity, it shall not be deemed a vessel since it constitutes a loss of the vessel, but shall still be deemed a vessel during its structure or salvaging. Although a vessel under construction is not equipped with the purpose and capacity for navigation, it may be deemed a vessel under the Ship Act even before completion of its navigation, even if it is possible to salvble. Moreover, a vessel falls within a vessel that is made of steel, salvage, special material, because it is irrelevant to the shipbuilding material.

(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 water, which navigates on or under the water surface, and shall not be included in the Hydro clar, a vessel mainly for flight.

(c) Navigation capacity;

There is a conflict of opinion in the past regarding whether a vessel can navigate with its own ability. However, the position of Article 1-2 of the Ship Act is clear by including a barge in the concept of the vessel in the concept of the vessel. Therefore, it is not a problem to clarify what is the driving power of the structure so long as it is used for navigation. Therefore, it is not only a baseline promoted by an engine, a sailing vessel propelled by a sail (a towing vessel), a sailing vessel propelled by a sail (a towing vessel), but also a vessel navigating by towing or pushed by another vessel due to lack of self-traffic capacity, and also a structure navigating by remote control from the outside.

(4) Construction purposes and use

① The most fundamental standard to determine whether a specific structure is a ship is used for the purpose and structure of building the structure rather than the size, form, loading capacity, or type of the ship. In determining the use of the ship, the U.S. court shall consider whether the structure has mobility and water transport capacity, whether it is exposed to the marine risks, whether it is fixed at one location, and whether the recognition of the structure as a ship is consistent with statutes or other policy needs (Bunet v. Broh Bros. Co., Ltd. Co., 715 F. 2d 196 (5th Cir. 1983); Mcromot, Inc. v. Broudtax, 679 F. 2d 452 (5th Crost. 5th 1982); and to use it as a ship, etc. under the U.S. court’s Model Law, Inc. 197.36th 198.36th 198; to use it as a ship;

(2) “A vessel, as an instrument used for navigation, shall be used to transport people or things and have the purpose and capacity to move at all times, so it shall be able to alter its location as desired at sea.

③ “A vessel as an instrument to be used for navigation” is temporarily fixed but is a structure designed to be moved and capable of moving by being capable of navigation or being towed, it falls under a vessel. Therefore, a barge, etc. installed by fixing it on the water to be used for the purpose of conducting work at a mobile place or for the purpose of using in addition to transporting goods or people, shall be included in a vessel (the proviso of Article 26 subparag. 4 was amended by Act No. 9870 on Dec. 29, 2009, and the proviso of Article 26 subparag. 4 was newly established and thus registered as a floating structure type barge was not subject to registration).

④ The question arises as to whether a platform or floating structure with a special function at a port is a ship. A ship is not sailing during the use of floating boats used for repair and building of a ship, and continuous fixed on the coast is not for navigation, but can not be seen as a ship. However, a building which is movable and provided for navigation may be seen as a ship even if a ship is temporarily anchored at a specific place on the voyage. Furthermore, if a ship which is not provided for navigation or used only for land navigation is completely lost its navigation function, it shall not be deemed a ship any longer, but it shall not be deemed a ship if it is no longer available for navigation or if it is a private ship used only 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 ship structure with the “snickness” and “snick capacity,” and is deemed to have the ability to navigate on the water with the “snick boat” or “snick boat” capable of being towed by another ship.

B) The instant barge was moored along the wharf and used as a wharf for boarding auxiliary vessels connecting the land and vessels. This constitutes a floating structure-type barge (the Defendant asserted that the instant barge was for supporting boarding, and that it was a simple structure that only plays the same role as a bridge connecting the land and vessels. However, even if the barge was installed and used by fixing it on the water for the purpose of supporting boarding, the instant barge constitutes a “ship that can move under towing as a structure designed to move, although it was temporarily fixed,” in light of the vessel’s requirements as seen earlier, the instant barge constitutes a “unclaimed structure-type barge” as alleged by the Defendants. Meanwhile, in the Supreme Court Decision 2014Da21410 Decided March 12, 2015, the Supreme Court held that “ship wharf for supporting boarding” falls under a floating structure-type barge, as alleged by the Defendants).

C) Defendant 1 stated that “In order to purchase and dismantle the steel bus line at the highest port of the train (this case’s barge) and use it as a scrap metal, Defendant 1 was towing the instant barge to the coast in front of the ○○○○○○○○○○ Shipbuilding’s station located in the epide of the luminous map at the epide of the city,” and it is reasonable to view that the instant barge constitutes “ship as an apparatus that can be used for navigation,” as seen earlier, as the construction purpose and use of the barge appears to reach approximately 20km.

D) According to the ship’s nationality certificate entry of the instant barge, the “type of the ship” refers to the “type of the ship” column (the Defendant asserted to the effect that the number of the ship under the ship’s nationality certificate of the instant barge was not assigned, and thus, it cannot be deemed a ship. However, as seen earlier, it appears to be the result of exempting a part of the barge from the obligation to file an application for registration and registration pursuant to Article 26(1) of the Ship Act, and it cannot be deemed that the ship is not a ship under the Marine Environment Management Act solely on the ground that the ship number was not assigned).

E) In light of the legislative purpose of Article 1 of the Act, “The purpose of this case is to contribute to the enhancement of the quality of life of the people by preventing harm caused by the deterioration of the marine environment or marine pollution and by creating a clean and safe marine environment,” which is stipulated in Article 1 of the Act, is to clarify the obligations of the people and the responsibilities of the State with respect to the preservation and management of the marine environment, and by prescribing basic matters for the preservation of the marine environment, it shall contribute to the improvement of the quality of life of the people.”

In full view of the aforementioned circumstances, it is reasonable to view that the instant barge constitutes “ship obligated to report when dismantling a ship” under Article 111(1) of the Act. Therefore, the Defendants’ assertion on this part 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 “Where a pollutant is removed and a ship with a gross tonnage of less than 100 tons is dismantled onto the land, they shall be exempted from the obligation to report.” Accordingly, the Defendants asserted 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 1’s act of cutting the barge constitutes a case where duty to report is exempted.”

However, in such a case, if a ship is partially cut and dismantled on the sea to remove pollutants, and only remove pollutants to land, the duty to report may be exempted, and the duty to report to dismantle the ship under Article 111(a) of the Act may be mitigated. In this regard, the Defendants’ assertion that “the duty to report is satisfied if a person liable to report dismantling the ship removes pollutants by cutting and dismantling part of the ship on the sea and removing pollutants from the ship on the sea.” Therefore, the Defendants’ assertion that “the requirements for exemption from the duty to report are satisfied in cases of dismantling (s) by removing pollutants after removing pollutants from the sea.”

2) Meanwhile, according to the evidence duly adopted and examined by the lower court and the trial court, Defendant 1 did not report and controlled the instant barge by cutting at 50 meters on the port side and 5 meters on the port side of the instant barge, and thereafter, Defendant 1 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 1 actually commenced the work of dismantling the barge of this case where pollutants are not removed on the sea without reporting, and it cannot be deemed that the crime of this case constitutes “cases where the duty to report is exempted” under the proviso of Article 111(1) of the Act and Article 73(2) of the Enforcement Rule. Accordingly, 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 Cho Chang-young (Presiding Judge)