[수산업법위반][공2010상,600]
The purpose of Article 33 of the Enforcement Decree of the Fisheries Act is to classify “large-line fishing” and “inshore fishing” into the types of inshore fishing subject to permission pursuant to Article 43 of the Fisheries Act according to whether they are installed in a net power plate, and whether this provision violates the principle of excessive prohibition or the principle of equality under the Constitution (negative)
Article 33 of the Enforcement Decree of the Fisheries Act separates the types of fisheries subject to permission under Article 43 of the Fisheries Act (wholly amended by Act No. 9626 of Apr. 22, 2009) into the types of fisheries subject to permission under Article 43 of the Fisheries Act (wholly amended by Act No. 9626 of Apr. 22, 2009) and the “inshore fishing” (fishing industry capturing aquatic animals using a low-powered fishing vessel with a gross tonnage of not less than 60 tons) and “inshore fishing industry” (fishing industry capturing marine animals using a high-powered fishing vessel with a high-powered fishing vessel) depending on whether or not a net power open board has been installed, etc., to prevent overfishing of fishery resources to protect fishery resources and prevent disputes among fishermen using fishery resources. Thus, even if the limitation on people’s freedom and rights arises, it cannot be deemed as an inevitable violation of the fundamental contents of the freedom of choice of occupation or the right to pursue happiness under the Constitution, and on the other hand, even if a fishing vessel in Korea’s exclusive economic zone is unfairly restricted by domestic allocation of fishing net.
Articles 43(1)1 and 94(1)1 of the Fisheries Act (wholly amended by Act No. 9626, Apr. 22, 2009); Article 33 of the Enforcement Decree of the Fisheries Act; Articles 10, 11(1), 15, and 37(2) of the Constitution of the Republic of Korea
Defendant
Defendant
Attorneys Cho Jae-hwan et al.
Gwangju District Court Decision 2009No56 Decided June 24, 2009
The appeal is dismissed.
The grounds of appeal are examined.
Article 33(2) of the Enforcement Decree of the Fisheries Act separates the large-scale fishing boat, bottom fishing boat, (fishing boat using a powered fishing boat with a gross tonnage of at least 60 tons) and inshore fishing (fishing boat using a powered fishing boat with a powered fishing boat) depending on whether or not the device of the net screen is installed, etc. for the purpose of preventing the over-fishing of fishery resources to protect fishery resources and preventing disputes among fishermen using fishery resources. Thus, even if the limitation of the people's freedom and rights results in an inevitable consequence based on Article 37(2) of the Constitution, it cannot be deemed that the inevitable violation of the freedom of choosing occupation or the essential substance of the right to pursue happiness under the Constitution, and on the other hand, even if a powered fishing boat operated in Korea exclusive economic zone uses the net screen, it cannot be deemed that the catch unfairly discriminates against domestic fishermen as long as the catch is restricted by the allocation of fishery resources.
Therefore, the ground of appeal on the premise that Article 33 of the Enforcement Decree of the Fisheries Act is invalid due to the violation of the Constitution, etc. is without merit.
On the other hand, the Supreme Court's decision cited in the ground of appeal is inappropriate to be invoked in this case, unlike this case.
Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Shin Young-chul (Presiding Justice)