[1] Whether Article 7 (2) of the Addenda to the Enforcement Decree of the Fisheries Act (amended by Presidential Decree No. 1870, Feb. 18, 1991) (negative) (negative) is in violation of the Constitution, which is a transitional measure for

[2] Whether Article 17(1) [Attachment 12] of the Decree on the Protection of Fishery Resources that limits the operating area of inshore fisheries and the fixed number of permits violates the Constitution (negative)

[1] Article 7 (2) of the Addenda to the Enforcement Decree of the Fisheries Act (amended by Presidential Decree No. 12208, Feb. 18, 191) provides that the former Enforcement Decree of the Fisheries Act (amended by Presidential Decree No. 12208, Feb. 18, 1991) may apply for permission for large-sized fishing, but the former Enforcement Decree of the Fisheries Act (amended by Presidential Decree No. 12208, Feb. 18, 1991) provides that some of the vessels, among those vessels subject to permission for medium-sized fishing, may apply for permission for large-sized fishing, as previous vessels, for permission for large-sized fishing, and such vessels do not violate the Constitution or the principle of equality.

[2] The operation area of inshore fisheries and the restrictions on the quota of permission pursuant to Article 17(1) [Attachment 12] of the Decree on the Protection of Marine Resources are to promote the balanced development of fisheries through the propagation and protection of fishery resources and coordination of fisheries, and its purpose is just, and its purpose is to achieve its purpose is appropriate and necessary means to achieve its purpose, and any imbalance between the public interest to be protected by such restrictions and the private interest infringed upon, cannot be said to occur. Thus, the above [Attachment 12] cannot be said to violate the principle of equality under the Constitution by causing unreasonable discrimination, or infringe on the fundamental rights of the Constitution concerning the freedom of occupation selection contrary to the principle of excessive prohibition or the principle of proportionality.

[1] Article 25 subparag. 1 of the Enforcement Decree of the Fisheries Act, Article 7(2) of the Addenda ( February 18, 191) of the Fisheries Act, Articles 11 and 15 of the Constitution / [2] Article 17(1) [Attachment 12] of the Decree on the Protection of Marine Resources, Articles 11, 15, and 37(2) of the Constitution

Plaintiff 1 and one other (Attorney Yu Jong-dong, Counsel for the plaintiff-appellant)

Busan Metropolitan City Mayor (Attorney Yellow Jin-jin, Counsel for defendant-appellant)

Busan High Court Decision 2005Nu2469 decided June 16, 2006

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

1. As to whether Article 7 (2) of the Addenda to the former Enforcement Decree of the Fisheries Act (amended by Presidential Decree No. 13308 of Feb. 18, 1991) is unconstitutional

Article 14-3 of the Addenda of the former Enforcement Decree of the Fisheries Act (amended by Presidential Decree No. 1308, Feb. 18, 1991; hereinafter referred to as the “former Enforcement Decree”) is a fishery which is subject to permission from the Administrator of the Fisheries Administration under Article 14-1 of the Addenda of the former Enforcement Decree of the Fisheries Act, and a large-scale low-sized fishing vessel is a fishery which uses low-speed fishing nets with the gross tonnage of not less than 50 tons, and a small-sized fishing vessel under Article 8 of the former Enforcement Decree of the Fisheries Act (amended by Presidential Decree No. 1308, Feb. 18, 1991; hereinafter referred to as the “Enforcement Decree of the Fisheries Act”) provides that a small-sized fishing vessel under Article 25 subparag. 1 of the former Enforcement Decree of the former Enforcement Decree of the Fisheries Act (amended by Presidential Decree No. 1308; hereinafter referred to as the “former Enforcement Decree”) is one of the three different provisions for fishing vessels subject to permission under Article 17 of the former Enforcement Decree of the Fisheries Act.

The court below held that Article 7 (2) of the Addenda to the Enforcement Decree of this case limits the plaintiffs' fundamental rights on the plaintiffs' freedom to choose occupation, and it discriminates against the plaintiffs compared to the fishery right holder who already obtained permission for the medium-term line fishing. However, considering the various circumstances as stated in its holding, the above provision does not violate the Constitution on the ground that the restriction on fundamental rights and discrimination under the above provision cannot be deemed reasonable. The court below was justified in the conclusion that the court below limits the plaintiffs' fundamental rights under the above provision and presumed that the above provision discriminates against the plaintiffs, and that the above provision does not violate the Constitution. Thus, the court below's error did not affect the conclusion of the judgment.

2. As to whether Article 17(1) [Attachment 12] of the Decree on the Protection of Marine Resources is unconstitutional or not

Article 17(1) [Attachment 12] of the Decree on the Protection of Fishery Resources is to promote the balanced development of fisheries through the propagation and protection of fishery resources and coordination of fisheries, and its purpose is justifiable, and its purpose is to achieve that purpose is to be appropriate and necessary means to achieve that purpose, and there is no imbalance between the public interest to be protected by such restriction and the private interest infringed upon. Thus, the above [Attachment 12] cannot be said to be in violation of the principle of equality under the Constitution by causing unreasonable discrimination, or to infringe on the fundamental rights of the Constitution on the freedom of choice of occupation contrary to the principle of excessive prohibition or the principle of proportionality.

Although the reasoning of the judgment of the court below is somewhat insufficient, it is just in the conclusion that the above [Attachment 12] is not in violation of the Constitution, and it is not erroneous in the misapprehension of legal principles as to the unconstitutionality of the above [Attachment 12] as alleged in the grounds of appeal.

3. As to whether Article 7(2) of the Addenda to the Enforcement Decree of the instant case and Article 17(1) [Attachment 12] of the Decree on the Protection of Fishery Resources are violated

Article 7 (2) of the Addenda to the Enforcement Decree of the instant case is only a provision that allows a certain vessel subject to permission for the medium-sized fishing to file an application for permission for the medium-sized fishing. Such vessels are not prohibited from filing an application for permission for the medium-sized fishing pursuant to the Enforcement Decree of the instant case. Article 17 (1) [Attachment 12] of the Decree on the Protection of Marine Resources is based on delegation under Article 52 (1) 5 of the Fisheries Act, and Article 52 (1) [Attachment 12] of the Decree provides appropriate and necessary measures for the protection of fishery resources and the development of fisheries as seen above 2. Thus, the argument in the grounds of appeal that each of the above provisions only protect those who obtained permission for the medium-sized fishing, thereby hindering the development of fisheries and the democratization of fisheries, thereby violating the Fisheries Act of the mother corporation is not acceptable.

4. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)