Criminal policy approaches towards accidents with multiple casualties and injuries are basically taken in two different steps - before and after the occurrence of an accident. First, at the level of prevention, certain obligations to take safety measures are imposed to stop any accident from ever happening, and non-performance of such obligations will be subject to criminal punishment. Second, after an accident occurs, those who are responsible for it are punished. Between these two-level approaches, the focus is, as in other areas, on the former.
In order for such approaches to be successfully taken, obligations and sanctions that are imposed should be appropriate (prevention), punishment should be reasonable and effective (prohibition of excessive legislation, general prevention), and the subject and method of punishment should be proper (conversion to fines for negligence, corporate punishment, etc.). These three points are the basic directions of the criminal policies for accidents with multiple victims, which are the subject of this paper. The emphasis, of course, should be on prevention, not on punishment.
Based on such directions, criminal policy approaches towards accidents with multiple casualties and injuries are summarized as follows.
1. Revision of Laws and Regulations on the Response to Accidents
(1) For an enhanced prevention-focused approach, important safety obligations should be selected and their performance should be guaranteed by strict and reasonable punishment.
1- It is appropriate to strengthen sanctions in overall with regard to violations of obligation to conduct an safety check and through safety diagnosis, which are essential for the prevention of large-scale accidents. This is because when a safety check is not carried out, this may endanger the public or cause casualties. In addition, sanctions under similar Acts should be compared and revised to create more organized and consistent ones.
2- Drinking alcohol and taking drugs should be regulated in a unified manner. Under the laws and regulations related to marine, railroad, and air traffic, driving or operation under the influence of alcohol or drugs is prohibited as on the road. However, there exist differences among the statutory punishments under the Maritime Safety Act, Aviation Act, and Railroad Safety Act, and there is no provision regarding taking drugs. It is necessary to enact supplementary legislation to resolve this.
3- It is also needed to revise sanctions regarding the safety manager system. Currently, most Acts have provisions on the safety manager system in areas with high risks of accidents. However, sanctions for not appointing a safety manager differ from each other under those Acts, and there is no penal provision regarding employing a substitute for a safety manager.
4- There should be no objection to the need to enhance education and training to prevent, and respond to, accidents. To this end, all laws and regulations related to safety should contain provisions on the education and training, and sentences for violations of such obligation need to be toughened up. Especially, violation of the obligation regarding education for carrying dangerous goods is highly likely to cause multiple victims. The current penalties, therefore, should be revised to be heavier than those for violation of obligation regarding other types of education.
(2) When an accident occurs, people in certain positions (e.g. captain of a vessel) are under obligation to take measures necessary to save human lives. This is because violations of this kind of obligation will directly harm people’s lives or properties. Therefore, sanctions for such violations require more through revision. Most Acts related to safety provide penalties for, first, violations of obligation to take necessary measures after an accident occurs, and second, non-performance of such obligation which led to casualties. Of course, the latter is subject to heavier punishment. However, comparison of punishments for each level under those Acts reveals the lack of organization and consistency in those provisions. In particular, many Acts that contain penal provisions for violations of obligation to take rescue measures do not provide for sanctions against any act that has actually led to casualties due to such non-performance after an accident occurred. This also requires further and supplementary legislation.
(3) In order to specify safety obligations and guarantee their fulfillment, it is essential to select acts of non-performance of obligation that cause accidents and, thus, lead to casualties and to provide sanctions against such non-performance. Currently, only some Acts contain penal provisions for non-performance of obligation which causes accidents and acts that thereby consequently lead to casualties.
(4) Negligence in the conduct of one’s professional duties or gross negligence can happen at any scene of an accident. Therefore, it is appropriate that provisions regarding causing risks to the public due to negligence be contained in all Acts related to safety.
(5) There exists some degree of doubt about the efficiency of lenient provisions on fines, such as those that read “fines not exceeding three million won.” Punishment (fines) is, as different from fines for negligence, imposed through strict and complicated criminal procedures, which leads to a waste of costs. Besides, even though such procedures are instituted, the amount of the fines is too small to have any deterrent power. Hence, it should be imposed in the form of a fine for negligence. In many cases, provisions that provide for imprisonment and fines, between which one can be selected, are not consistent in terms of the proportionality between imprisonment and fines. This is another area in need of an overall revision.
(6) In many Acts, types of violations that are totally different in nature are described under a single penal provision. Such a provision usually provides for very lenient sanctions. It also does not clearly define acts which are prohibited and subject to punishment. Therefore, acts with different nature need to be covered under different provisions.
(7) Article 121 (Legal Fiction as Public Officials in Application of Penal Provisions) of the Nuclear Safety Act that provides “any person who falls under any of the following subparagraphs shall be deemed a public official in applying the penal provisions of the Criminal Act and other Acts” expands the state punishment power and thus should be repealed. In addition, the provision that requires an accusation of the Minister of Land, Transport and Maritime Affairs to institute the public action should also be deleted as it has no reasonable grounds.
2. Sanctions against a person related to accidents with multiple casualties and injuries need to be reasonable.
(1) Strengthened punishment for accidents with multiple victims based on the principle of severe punishment cannot be regarded as reasonable sanctions. This is because imposing severe punishment on a manager, supervisor, or public official, or a person who is directly responsible for the accident does not prevent the same types of major accidents. Safety accidents that cause multiple victims are basically “accidents,” which are caused by negligence. Severe punishment for negligence, different from the case of intentional crimes, does not preclude the possibility of any violation of obligation to pay attention.
(2) “The Act on Special Cases Concerning Aggravated Punishment on Concurrent Crimes Causing Multiple Casualties and Injuries” proposed by the Ministry of Justice as a sanction against concurrent crimes harbors many problems as discussed above.
The principle of concurrent sentences in other countries has significant limitations, and aggravated punishment for cumulative offences is also a problem which should not be left unchecked. Furthermore, the principle does not properly define the concept of multitude. And there is no clear distinction between “Handlungsunwert” and “Erfolgsunwert”. Problems may also be raised regarding fairness between crimes with multiple casualties and injuries and other crimes. This proposed Act also does not contain any provision on short-term aggravation, which implies the possibility of imposing the minimum punishment. Lastly, the Criminal Act and major criminal Special Acts do not provide for imprisonment for a limited term as a statutory punishment for murder or accidental homicide. In some cases, it is not clear whether such imprisonment may be applied in the first place. Therefore, it is all the more urgent to reduce the possibility of mitigating the sentences. This requires revising the statutory punishments for negligence in one’s professional duties resulting in death or injury under the Criminal Act and other Special Acts. In addition, with regard to the concurrent crimes under the general provisions of the Criminal Act, the maximum sentences should be aggravated by one-half.
Whether to aggravate the minimum sentences at the same time needs a comprehensive review.
(3) In the case of professional negligence resulting in death or injury under the Criminal Act, separate statutory punishments should be provided for the case of death and injury. It will also be necessary to set forth both the maximum and minimum sentences or, at least, to aggravate the maximum sentences. Raising fines of the statutory punishments for (professional) negligence resulting in death or injury under the Criminal Act as well as Special Acts will be inevitable as well.
(4) With regard to providing reasonable sanctions against managers or supervisors, the introduction of the principle of negligence in supervision to expand the scope of criminal punishment is not necessarily needed. In compliance with the principle of freedom of contract, it is not possible to regulate risks coming from abroad. However, under Article 10-2 of the revised Act on Regulation and Punishment of Criminal Proceeds Concealment (so called, “Yoo Byung-eun law”), the requirements of “criminal responsibilities” and “an accident causing a loss of multiple human lives” need to be revised once again.
(5) In relation to providing sanctions against public officials concerned, it does not seem really necessary to introduce penal provisions for casing injury while performing official duties under the German criminal law. It is also not considered as a reasonable sanction to limit retirement benefits of the public officials concerned. Disciplinary actions (in relation to Article 2, paragraph 1) in the Attached Table 1 (revised on August 19, 2015) of the Enforcement Rule of the Disciplinary Orders of Public Officials for “non-performance of accusation of major corrupt practices related to official duties” as part of non-compliance of duties of good faith are categorized as follows: degradation and suspension for “high degree of omission and gross negligence, or low degree of omission and intentional”; suspension (severe disciplinary action) and salary reduction (minor disciplinary action) for “high degree of omission and slight negligence, or low degree of omission and gross negligence”; and only salary reduction and reprimand for “low degree of omission and slight negligence.” The disciplinary actions described above are deemed to be too lenient for acts that may directly cause accidents. Therefore, they need to be toughened up.
3. In general, in the fields of nuclear energy, toxic chemicals, and air traffic where complicated and highly decentralized technical systems are used, safety accidents are not caused by individuals such as employees, but they are rather attributable to organizational and structural problems including those of the rules, practices, systems, and culture of the organization. Given such fact, it is essential to strengthen corporate responsibilities to prevent large-scale accidents, e.g. the sinking of Sewol Ferry. To this end, proactive legislation is not an option but a must, which may include enacting the Corporate Manslaughter and Corporate Homicide Act.