도선사고의 형사법적 고찰

The Criminal Consideration on Accidents related to Pilotage

When considering accidents related to pilotage from the criminal law, the first thing to investigate is whether the pilot breach of duty of due care while in charge of the ship. The Pilot's duty of due care consists of duty to anticipating risk and duty to avoiding risk the consequence. Here, the duty of due care can be said to be based on a common, insightful and considerate person with the same social role of the concerned pilot, concerning objectivity. The general and objective standards shall be the level of navigation and maneuvering techniques and the discretion of the pilotage action, and the particular and specific standards shall be regional background, specialization, and urgency. After the standards of acknowledging criminal negligence are set, there appears the principle with which it is attempted to objectively reduce the extent of criminal negligence, and it is called the legal principle of accepted risk. The principle can be explained as follows: "When an action with which it is attempted to achieve a highly beneficial goal in the social life, in its nature, has the risk of breaching legal interest, if the action was taken with necessary caution for social life and a certain preventive measure against anticipated risk, the justification cause." In reality, as the principle of accepted risk is too abstract and comprehensive to play an independent role under the system of criminal law, more concrete role of limiting the objective duty of due care on the part of the person who committed the criminal negligence is played by the rule of trust. The rule of trust was developed through the settlement of on-land traffic accidents and is much applied in the Supreme Court judgments; however, in the case of the precedent of the Supreme Court, we can't say that the rule of trust is applied in the accidents related to pilotage. Still, it seems that the application of the rule of trust in pilotage-related accidents, as in the case of on-land traffic accidents, doesn't undermine equity.