消防警察法上 强制處分에 관한 硏究

Abstract

The features of a variety of disasters including the recent fires, casualties, and property losses result from diversification of type, seriousness of damage, and complication of settlement. That is, not only artificial disasters such as fire, collapse, explosion, and traffic accident but also natural calamities like typhoon, flood, downpour and storm are diverse in type and high in frequency. Once an accident happens, casualties and property damage have a tendency to be big-sized. Those structures which are high-storied, thorough, sophisticated and automated, the increasing illegal parking, the rising number of natural disasters such as downpours and typhoons, the diversification of industrial facilities and energy resources, and the tunnelization of transportation and telecommunications system have made prompt lifesaving difficult. Accordingly, to cope with such a situation promptly and actively and minimize its casualties, fire laws including 「the fundamental law of fire」, regulate that, in an acute case of protecting a citizen's life, body, and property in a different variety of disastrous spots like a fire, legal disposition imposes temporary use, restriction in use, destruction, removal, moving, change, compulsory evacuation, deportation and fire servicing upon structures, goods, land and persons without any prior responsibilities for people concerned. In this study, this right was called "the Legal Disposition of the Fire-Police Services Act" and its major contents can be examined depending on the articles. First, 「the fundamental law of fire」stipulates "the urgent passage of fire-fighters (article 22)", "fire-fighting servicing order (article 24)", "legal disposition in fire-fighting activities (article 25)", and "urgent action on hazardous facilities (article 27)." Next, 「the fundamental law on disaster and safety management」states "compulsory evacuation measures (article 42) and "emergency obligation (article 45)" and 「the law on relief from suffering」 regulates "first-aids on relief from suffering (article 7). Lastly 「high pressure gas safety supervision law」(article 20) and 「the law on the safety supervision and business of liquefied petroleum gas」(article 27) states a legal disposition of gas facility sealing and provisional holding. Therefore, this paper focused on these contents, examined legal principles such as legislative purposes of legal disposition, induced some problems through comparing them with lawmaking examples of foreign countries, and proposed some improvements. The major scope of research and improvements are as follows. To begin with, a fire is a typical harm so fire fighting maintains public security and order through the fire prevention and extinguishment, and the rescue and first-aid activities in case of a fire, a disaster, or other dangerous situations. It is practically the police, in other words, the preservation police. In this aspect, "fire-police" and "fire-police services act" were defined. Next, through deeply studying and analyzing the current domestic and international the law of safety from fire and other emergency scenes preservation police regulating the legal disposition, and examining their legal principles, the aspects of "legislation," "compensation," "legal principles" were classified and their problems were raised and their improvements were presented as follows. In addition, the improvements were beyond one's opinion and are classified and embodied into the existing laws, the improvements, and their advantages by decree and provision. The first improvement is a legislative aspect related to exercising the right of legal disposition. Improper language use was corrected or unified to avoid confusion and misunderstanding. Legal disposition of no validity was given some ways to obtain a validity. Furthermore, to make a legal disposition exercised in place, dispositioners are clarified on a disaster-scene basis. However, such a legal disposition restricts a citizen's right and may entail secondary unexpected problems. Therefore it was proposed that caution obligation regulations to legal disposition be enacted. The second improvement is in terms of compensation for loss according to legal disposition. The current the law of safety from fire and other emergency scenes preservation police regulate the legal disposition. However there cannot be found any law on indemnity in some cases, and are only compensation regulations but no specific standards of them such as the extent, ways, and bases in most cases. Though the necessity of legal disposition in fire fighting is accepted to secure public safety, its losses should have been properly compensated. Therefore this study expanded the extent of indemnity as well as made its standards and methods legislated. The third improvement is in terms of legal principles resulting from legal disposition. The current legal disposition regulations have indefinitive word such as "necessary disposition in fire fighting", "necessary measure", and so on. Especially the legal disposition in a fire spot in article 25 of 「the fundamental law of fire」is representative and this regulation is improper given that it is acted upon a citizen's body and property without prior duty. Thus this paper presented the contents of legal disposition more specifically, and also included such general authorization provisions as can be interpreted. Also in case of any disposition except scienter or gross negligence, some ways to reduce or exempt from a fire-fighter's responsibility were presented. Lastly, through looking over legal principles in procedural institution of legal disposition, legal disposition, writ practice, and violation and responsibility by excessive legal disposition were researched and the extent and limit of power that a fire captain exercises were set. Therefore this study helps him to exercise proper rights without excessive disposition and misuse of rights.