2017No5222 Violation of Marine Environment Management Act

1. A;

2. B

3. C.

4. Daehan:

Defendants

Han Dong-dong (Court of Prosecution) and Question (Court of Justice)

Law Firm Chungcheong Sea, Attorney Yellow-gu (for all the defendants, Counsel for the defendant)

Daegu District Court Decision 2017 High Court Decision 222 Decided November 8, 2017

June 22, 2018

All appeals by the Defendants are dismissed.

1. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles

1) misunderstanding of legal principles as to the existence of jurisdiction

As to the instant case, since the jurisdiction of the courts of the Republic of Korea is not recognized pursuant to Article 97(1) of the United Nations Convention on the Law of the Sea, the dismissal of prosecution shall be sentenced. Nevertheless, the judgment below which convicted the Defendant of the facts charged in this case is erroneous

2) Defendant B and C’s mistake of facts and misapprehension of legal principles as to Defendant B and C’s duties are not responsible for the occurrence of marine pollution. Nevertheless, the lower court erred by misapprehending the legal principles and misapprehending the legal principles as to the facts charged in the instant case against the said Defendants.

3) misunderstanding of facts as to marine pollution and misunderstanding of legal principles as to waste specification

In addition, there is no objective evidence to acknowledge that pollutants in the annexed list of crimes have been leaked, and the remainder of the pollutants (No. 4 through 15) other than oil among the pollutants in the crime inundation table is not a waste prohibiting the discharge into the sea under the Marine Environment Management Act. Nevertheless, the judgment of the court below that found the whole charged facts of this case guilty is erroneous in the misapprehension of legal principles and erroneous in the misapprehension of legal principles.

B. Unreasonable sentencing

The punishment sentenced by the court below to the defendants (the fine of KRW 30 million) is too unreasonable, because it is too unreasonable. 2. Fact-finding or misapprehension of legal principles

A. Legal principles as to the existence of jurisdiction

The Defendants asserted the same as the grounds for appeal in the lower court, and the lower court rejected the above assertion in the item “as to the Defendant and his defense counsel’s assertion” as stated in the above assertion and its judgment. Examining the above judgment of the lower court in comparison with the records of the instant case, the lower court’s judgment is just and acceptable, and there is no error of law by misapprehending legal principles as alleged by the Defendants. Accordingly, this part of the Defendants’ assertion is without merit.

B. In a case where the occurrence of a consequence of mistake of facts and misapprehension of legal principles concerning Defendant B and C’s duties may be predicted, and even if it could be avoided, if the occurrence of a result is caused by neglecting the normal duty of care, the liability for the crime of negligence shall not be exempted. Such duty of care is not necessarily required under an individual Act and subordinate statutes, and is not necessarily required to stipulate the basis or content thereof, and it is possible to recognize the duty of care to prevent the occurrence of a result by comprehensively assessing all relevant circumstances in a specific situation where the occurrence of a result is anticipated and avoided (see Supreme Court Decision 2008Do11921, Apr. 23, 2009).

In light of the above legal principles, in full view of the following circumstances acknowledged by the evidence duly adopted and examined by the court below, Defendant B and C can be recognized as having discharged pollutants into the sea by occupational negligence, such as the entries in the facts charged, in collusion with Defendant A. Therefore, this part of the Defendants’ assertion is without merit.

① The instant accident is caused by neglecting the boundaries of large cargo E (hereinafter “instant cargo E”) navigating during the day when visibility is good, resulting in the failure of avoiding the FF of a fishing vessel, which was at anchored in a booming state by neglecting the boundaries (Provided, That even if the FF of the fishing vessel neglected the boundary and fails to take appropriate cooperative action to avoid collision, such as warning signal, etc., became the cause of partial occurrence of the instant accident).

② According to the International Rules on the Prevention of Collisions at Sea, according to the "Recommendation of the International Maritime Organization (International Maritime Organization)" and the "Matters to be instructed by the captain on the duty of the cargo of this case, the voyage worker at the time of the accident of this case, Defendant A, B, who is the navigation worker at the time of the accident of this case, shall not move to any other place than the steering boat, nor perform any other duty than the watchkeeping worker at all times, and shall maintain a thorough inspection.

③ In the case of coastal navigation, such as the point at which the instant accident occurred, Defendant B, a steering boat, has many obstacles to navigation, and thus, has to pay more attention; Defendant B, a steering boat and other obstacles; Defendant B, a steering boat, has been aware of the fact that: (a) the steering boat and other obstacles are placed on duty; (b) the steering boat and other obstacles are placed on duty; and (c) when an obstacle, such as a fishing boat, etc. exists on the steering boat, he/she must report to the watchkeeping officer; and (d) during the navigational watch, he/she

④ Nevertheless, Defendant B did not properly perform the above duties by leaving the steering house during the duty hours and arranging the deck warehouse.

⑤ Defendant C, the captain of the instant cargo vessel, is a general manager for the instant vessel and a crew member and a person in charge of safety management, such as vessel operation. Defendant C was well aware of the fact that the instant accident points were set back and sailed to and from the port of the instant accident, prior to the instant accident, and that the instant accident points were areas where a large number of fishing vessels could have been distributed near the Republic of Korea.

6. According to Article 1(1) of the International Rules on the Prevention of Collisions at Sea, the "Basic Principles to be observed in maintaining the position corresponding to the navigational watch" in Article 1(1) of the International Convention on the Prevention of Collisions at Sea provides that "the captain shall secure appropriate assignment of navigational watch for the maintenance of safe navigational watch. The navigational watch officer is responsible for safe navigation of the vessel during his/her duty hours, and is more so in the sense that he/she is avoiding collisions and strandings. C as a captain, was entitled to exercise the general command of A, a navigational watch officer.

7) Nevertheless, Defendant C knew at the time of the instant accident that both Party A and Party C, the watchkeeping officer at the time of the instant accident, knew that there was no person performing the duty within the steering house due to the steering house and performing other duties than the duty. However, Defendant C did not take any measures to ensure the boundaries of the instant vessel.

C. Comprehensively taking account of the following circumstances acknowledged by the court below’s duly adopted and examined legal principles as to the mistake of facts as to marine pollution and the misapprehension of legal principles as to the specification of waste, the Defendants can recognize the fact that the Defendants discharged pollutants such as those stated in the annexed list of crimes in the court below. Therefore, the Defendants’ assertion on this part is also without merit. ① According to F’s captain’s statement by police officers, investigation report (specific contents such as pollutant emission quantity, such as quantity of pollutants, etc., such as quantity of oil and ballon as stated in the annexed list of crimes in the court below’s judgment, it is recognized that oil and ballon, etc., such as the oil and ballon

(2) The term "waste" means any substance (excluding oil, liquid substance, or harmful substance in packaged form) which can not be used in such state when discharged into the sea and which adversely affects or is feared to adversely affect the marine environment (Article 2 subparagraph 4 of the Marine Environment Management Act), and any substance such as the No. 4 through No. 15 of the crime list attached to the original judgment is equivalent to the "biobb waste" in Annex V to the Convention on the Prevention of Marine Pollution (MARPL 73/78). It is reasonable to view such substance as a substance which can not be used in such state when discharged into the sea and which causes or is likely to cause harmful results to the marine environment.

③ In particular, in the case of freezing 31,50 kg as the freezing 10 Nos. 10 attached Table 10 of the lower court’s judgment, such freezing scams may adversely affect or threaten to adversely affect the two environments of the sea, such as the occurrence of environmental pollution due to dystrophy, etc. (see No. 71 of the evidence list).

④ The F’s captain G and shipowner AE were indicted for the same facts charged as this part of the facts charged, and the judgment of conviction was finalized on December 2, 2017 (Seoul District Court Decision 2017Dadan287 and Daegu District Court Decision 2017No2291).

3. Whether an unreasonable sentencing is unfair

It is desirable to respect the sentencing of the first instance court in cases where there is no change in the conditions of sentencing compared with the first instance court, and where the sentencing of the first instance court does not deviate from the reasonable scope of discretion, it is reasonable to respect them. Although the sentence of the first instance falls within the reasonable scope of discretion, it is reasonable to reverse the judgment of the first instance court solely on the ground that it is somewhat different from the opinion of the appellate court, and to refrain from imposing a sentence that does not differ from the first instance court (see Supreme Court en banc Decision 2015Do3260, Jul.

In light of the following: (a) there is no change in the sentencing conditions compared with the original judgment because new sentencing data was not submitted in the trial; and (b) comprehensively considering the reasons for the sentencing revealed in the proceedings of the instant case, the sentencing of the lower court is too excessive and does not seem to have exceeded the reasonable scope of discretion (the Defendant submitted each written agreement and the certificate of remittance of agreed money to the effect that the Defendant agreed with the bereaved family members of the other vessel that died of the instant accident at the trial. However, the instant case is not occupational death but occupational injury, but maritime environment management violation case; (c) it is difficult to view the above sentencing data to have a special meaning

4. Conclusion

Therefore, the defendants' appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Allowable judge of the presiding judge

Judges Shin Jin-jin

Judges Park Gon-mo