해상 조난사고에서의 민관협력에 관한 규범적 연구 : 수색구조 및 인양을 중심으로

초록

Public interest in maritime search, rescue and ship salvage is increasing recently due to the sunken ship in the Yellow Sea while returning from a search for clues to naval disaster in 2010. The purpose of this work is to explore the legal aspect surrounding the private participation in maritime accident. Although the state has to fulfill his constitutional responsibility to protect civilian lives and remove danger of basic rights,legislative-discretion justifies the authority to assign who should be obligator for it's operation and this problematics could be recognized as part of academic field of police administrative law. The form of privatization -the private participation in the assignment of state- is generally divided into 3 catogories: material privatization, formal privatization, and functional privatization. The private participation in SAR and salvage falls into category of functional privatization. This research is based upon a premise that SAR and Ship Salvage are quite distinct from each other. While the former is related to typical averting a danger in the scope of police administrative law, the latter is a part of criminal procedure or a way of enhancement of the welfare. Regarding SAR, the coast guard take the eventual responsibility, but the private participation in operation is allowed as well. The form of this participation is divided into two types, depending on the influence of state. Under the influence of state, private person can take part in the operation as a causer of danger, non-causer of danger or within the frame of public contract. Besides, voluntary participant could be considered as another form that has nothing to do with the influence of state. When it comes to ship salvage, the legal liability is regulated in the corresponding law. It falls on possessor, occupant and captain of a ship according to current law. Moreover the state, as the possessor of public property can use the legal force against the causer of danger by the authority of public property.

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