(영문) 대구지방법원 2017.7.14.선고 2016구합23419 판결

1) The Plaintiff is a fisherman who has obtained a fishery permit in Ulsan-gun Coast Network B, Ulsan-gun Coastline C, and Ulsan-gun Coast Complex D, and who captures large stores and dissolved articles by operating the “E (67 tons) owned by the Plaintiff.”

2) A person who intends to run a fishery business using a non-powered fishing vessel or a powered fishing vessel with a total of less than 10 tons must obtain permission for each fishing vessel or fishing gear from the competent Mayor/Do Governor (Article 41(2) of the Fisheries Act). However, the Plaintiff, without permission from the competent Mayor/Do Governor from January 13, 2016 to February 1 of the same year, violated Article 41(2) of the Fisheries Act by conducting the fishery business on the sea of Gangwon-do without permission

3) On July 18, 2016, the head of Ulsan-do notified the Plaintiff in advance that there would be an administrative disposition of the suspension of fisheries 30 days due to the violation of the Fisheries Act and the suspension of the license for the ship officer 30 days, and that the submission of its opinion thereon.

4) In addition, on August 3, 2016, the head of Ulsan-si submitted the certificate of ship officer’s license from the Plaintiff, and on the same day, the head of Ulsan-si imposed a penalty surcharge of KRW 1.8 million equivalent to the suspension of fishery (from August 5, 2016 to September 3, 2016) on the Plaintiff on the same day, and requested the Defendant to take an administrative disposition of KRW 30,000,000,000,000,00

B. Suspension of business and cancellation of license of the defendant

1) On August 10, 2016, the Defendant rendered a disposition of 30 days of business suspension (from August 3, 2016 to September 1, 2016) on the ground that the Plaintiff violated Article 41(2) of the Fisheries Act.

2) On November 9, 2016, the Defendant notified the Plaintiff of the violation that the Plaintiff served as the captain of E at least 13 times during the period of suspension of business from the Maritime Security Manual, and issued a disposition revoking the Plaintiff’s license (hereinafter “instant disposition”) by applying Article 9(1)6 of the Ship Personnel Act on November 9, 201.

C. Criminal case against the plaintiff

1) On November 23, 2016, the Plaintiff was indicted of violating the Ship Personnel Act on charges that the Plaintiff served as a ship personnel on six occasions from August 4, 2016 to August 15, 2016 during the period of suspension of business (from August 3, 2016 to September 1, 2016) (Seoul District Court Young District Court Young-gu Branch Branch 2016Kadan263).

A person shall be appointed.

2) The instant case was consolidated with other criminal cases (No. 2016 high-class 216) including the Plaintiff’s violation of the Fisheries Act. On February 15, 2017, the prosecution withdrawn all the five charges except for the violation of the Ship Personnel Act (No. 15, 2016), and the court sentenced the suspension of execution and the conviction of fines for all the charges charged to the Plaintiff on the same day. At present, the instant case was pending in the appellate court’s appeal by the Prosecutor, the Daegu District Court 2017117.

【Ground of recognition】 The fact that there is no dispute, Gap’s evidence 1 through 9, Eul’s evidence 1 through 8, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

On August 3, 2016, the Plaintiff was imposed a penalty surcharge in lieu of the suspension of fishery business, and paid both the penalty surcharge on the same day. On August 10, 2016, the Plaintiff operated E for the purpose of livelihood without gathering from the Defendant that the license was suspended until the license was suspended.

Therefore, even though the plaintiff's negligence or possibility of criticism is not significant, the cancellation of the license for the ship officer was too harsh to the plaintiff and abused discretion.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether a punitive administrative disposition deviates from or abused the scope of discretion under the social norms or not shall be determined by comparing and balancing the degree of infringement on public interest and the disadvantages suffered by an individual due to the disposition, by objectively examining the content of the offense as the grounds for the disposition, the public interest achieved by the relevant disposition, and all the relevant circumstances, etc. (see, e.g., Supreme Court Decisions 2005Du9910, Jun. 28, 2007; 2006Du19297, Jul. 19, 2007; 2006Du19297, Jun. 19, 2007). In such a case, even if the criteria for the punitive administrative disposition are prescribed in the form of Ministerial Ordinance,

Inasmuch as there is no binding effect on B, and the issue of whether the pertinent disposition is lawful should be determined not only in accordance with the above disposition standards but also in accordance with the provisions and purport of the relevant Acts and subordinate statutes, the pertinent disposition cannot be deemed legitimate as soon as it meets the above disposition standards (see, e.g., Supreme Court en banc Decision 94Nu14148, Oct. 17, 1995; Supreme Court Decision 96Nu5773, May 30, 1997; Supreme Court en banc Decision 2003Du1684, Jun. 22, 2006; etc.). However, the above disposition standards do not conform with the Constitution or Acts and subordinate statutes or they should not be determined that a punitive administrative disposition in accordance with the above disposition standards is a deviation from the scope of discretion or an abuse of discretionary power, unless there is a reasonable ground to deem it significantly unreasonable in light of the content and purport of the relevant Acts and subordinate statutes (see, e.g., Supreme Court Decision 2007Du646966, Sept.

2) We examine the instant case in light of the aforementioned legal principles. In light of the following circumstances, the instant disposition cannot be deemed to have been abused or deviates from discretionary authority, and thus, the instant disposition is lawful, and the Plaintiff’s assertion disputing this is without merit.

① Pursuant to Article 9(1)6 of the Ship Personnel Act, when a marine officer has served as a ship personnel during the period of suspension of business, a license may be revoked, or an order for suspension of business for a fixed period of not more than one year or reprimand may be issued. However, when a marine officer served during the period of suspension of business as specified in attached Table 2-2-f of the Enforcement Rule of the Ship Personnel Act, which sets the detailed criteria for an administrative disposition upon delegation under Article 9(6) of the same Act, revocation of license is granted for the first violation. The instant disposition is in accordance with the disciplinary disposition guidelines prescribed by Ordinance of the Ministry of Construction and Transportation as above. Therefore, barring any reasonable ground to deem the criteria to be considerably unfair, readily concluding that the

② Next, according to the progress of the relevant criminal case and the statement of the judgment of the court of first instance, the Plaintiff was indicted for working on the part of six times from August 4, 2010 to August 15, 2010, and the public prosecution was withdrawn as to the five times from August 10, 2016. However, even if part of the facts charged was withdrawn by a public prosecutor in the relevant criminal trial, it cannot be said that there was no violation in the administrative trial, and the court in charge of the administrative trial can make a different judgment by taking account of the evidence submitted.

However, the following circumstances are revealed in light of the purport of the entire argument in the evidence presented earlier, namely, the Plaintiff’s prior notification from the head of Ulsan-do, the competent administrative agency of the suspension of fisheries and the suspension of the license for marine officer on August 3, 2016, and the return of a marine officer’s license on his/her own on August 3, 2016, and the Ulsan-do governor pursuant to Article 30 subparag. 1 of the Seafarers’ Work

In full view of the fact that a marine officer’s license may be kept in a ship and operated on August 10, 2016 (Article 15 of the Ship Personnel Act), etc., even if the Defendant applied retroactively to the Plaintiff on August 3, 2016, the starting point of counting the original marine officer’s license and stating the date of recovering the license, and the Defendant demanded the Defendant to suspend his/her business. Accordingly, even if the period from August 3, 2016 to October 10 of the same month is still under the suspension of business, the Defendant did not comply with the law, and thus, if he/she was a ship personnel during the suspension of business under Article 9(1)6 of the Ship Personnel Act and Article 32 of the Seafarer’s Service Guidelines, the Defendant did not deny his/her license as a ship personnel during the suspension of business under the suspension of business under the provision of Article 9(5) of the Ship Personnel Act. Therefore, even if he/she did not know the Plaintiff’s license during the suspension of business under the provision of the license, it constitutes an intentional breach of the Plaintiff 16’s license.

(3) In addition, in light of the aforementioned circumstances, such as the facts of the Plaintiff’s violation and the developments leading up to the disposition, it cannot be deemed that the Plaintiff’s violation was caused by minor negligence or errors, not intentional or gross negligence, or that the content and degree of the violation are insignificant. Therefore, it does not appear that the Plaintiff has any separate grounds for mitigation as stipulated in attached Table 2 of the Enforcement Rule of the Ship Personnel Act.

④ In modern society, there is a great need to promote maritime safety as the volume of marine traffic increases. As such, it is inevitable to apply the principle and strict law to violations of the fishery-related Acts and subordinate statutes and crew-related Acts and subordinate statutes. Therefore, even if the Plaintiff suffered any economic disadvantage due to the instant disposition, it cannot be said that it is more severe than the public interest to be achieved by the instant disposition.

3. Conclusion

The plaintiff's claim is without merit, and it is dismissed. It is so decided as per Disposition.