부작위에 의한 살인죄의 공동정범의 성립요건

Complicity in Homicide by Omission

On Nov.12. 2015, the Suprem Court of Korea has given out an judgement on the Sewol Ferry incident that convicted the captain of a Homicide by Omission who escaped the ship abandoning more than 300 passengers and crews trapped in the sinking ship. On the contrary it denied the first navigation officer and the second of the charge a complicity in homicide by omission. The Court said that a conviction shall not be made because it was hard to admit that they were in collusion with the captain and omitted their obligations out of willful negligence or dolus eventualis. However they, as the executive members of the ship, had duty to protect the passengers and the other crews on the Sewol Ferry from the danger of death in the ship in distress. They knew that they were in a tense situation and the captain didn’t organize his response appropriately, and they could have rescued most of the people who couldn’t escape from the sinking ship if they tried to fulfill their obligation. It can be said that they took charge in the crisis with the captain, and there was implied communication between them to omit their obligation when they abandoned the passengers and crews escaping the ship with no action to rescue them. This article deals with the practical and theoretical possibility that the executive navigation officers of the Sewol Ferry can be convicted of a complicity in homicide by omission.