배타적경제수역에서의외국인어업등에대한주권적권리의행사에관한법률위반등
The judgment of the court below is reversed.
Defendant shall be punished by a fine of KRW 50,000,000.
The above fine shall not be paid by the defendant.
1. Summary of grounds for appeal;
A. As to the mistake of facts and misapprehension of legal principles regarding the obstruction of the performance of official duties, Defendant 1’s mistake of facts and obstruction of the performance of official duties, since there was no person capable of Chinese fishing, among police officers boarding the fishing vessel at the time of the instant case, and thus, did not perform legitimate official duties, and the Defendant did not have any high speed of the fishing vessel to keep the crew, and the Defendant’s act was merely passive resistance to illegal performance of official duties, and thus did not constitute violence or intimidation, and there was no conspiracy with G. As to the violation of the Act on the Exercise of Sovereign Rights over Foreigners, etc. in Exclusive Economic Zone, as to the violation of the Act on the Exercise of Sovereign Rights over Foreigners’ Fishing, etc. in Exclusive Economic Zone, only D operated by the Defendant was within the Exclusive Economic Zone, and there was no timely transfer of catches. Even if there was a partial transfer of domestic affairs, it should be deemed that there was a transfer of fish in China from the Chinese sea area. Nevertheless, all of the facts charged in the instant case was found guilty in error of mistake of mistake and misapprehension of legal principles.
B. The Prosecutor’s sentence (the fine of KRW 50 million) of the lower court is too unhued and unreasonable.
2. Before determining the grounds for appeal ex officio, the lower court applied Articles 17 subparag. 3 and 11 of the Act on the Exercise of Sovereign Rights on Foreigners’ Fishing, etc. in the current Exclusive Economic Zone to the Defendant’s unlawful catch transfer crime. The statutory penalty is set as a fine not exceeding KRW 200 million.
However, Article 17 of the above Act was amended by Act No. 11420 on May 14, 2012, and was enforced from the same date, and it was in accordance with the previous provisions when penal provisions were applied to acts before the enforcement of the amended Act.