Hancheon-si Fisheries Cooperatives and the fishing village fraternity (Attorney Do-young et al., Counsel for the plaintiff-appellant)

Do Governor of Chungcheongnam-Nam

April 1, 1994

1. On April 30, 1993, the Defendant’s revocation of the license granted to Nonparty Gao-ro, etc. on each fishery right indicated in attached Form 1.

2. The costs of lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the instant disposition

The plaintiff is a fishing village fraternity prescribed in Article 16-2 of the Fisheries Cooperatives Act established by consisting of the members of the fisheries cooperatives residing in the outside of the Yancheon-gun, Yancheon-gun, by obtaining authorization from the Administrator of the Fisheries Administration in around 1962, and the plaintiff is a co-owner of each fishery right indicated in the attached Form 2, which is the co-owner of the old fishery right indicated in the attached Table 2, and the defendant obtained each fishery right indicated in the attached Table 1 (hereinafter referred to as "the fishery right of this case").

(C) On January 12, 1993, the Defendant decided on the priority order of each fishing ground of the instant fishing right, which was applied by the Plaintiff and four persons outside the above fambling route, that the aforementioned four persons outside the above fambling route should take precedence over the Plaintiff according to the order of priority under Article 13 of the Fisheries Act. On April 30 of the same year, the Defendant issued the instant disposition that granted the instant fishing right to the said fambling path, etc., based on the above decision.

【Premium】

The facts that have no dispute, Gap evidence 2-1 (Notice of the result of the examination of priority), 2 (Notice of the Examination), 3 (Report of Priority), 6 (Written Evidence), 8-1 through 6 (Certified Copies of Each Fishery Rights Register), 21 through 26 (Application for Each Fishery Rights Register), 27 through 29 (Certified Copies of Each Fishery Rights Register), 7-1 (Notice of Order of Priority of 93), 2 (Notice of Decision of Priority of 93), 3 through 8 (Notification of Decision of Priority of License), 9-1 (Disposition of Fishery License), 2 (Disposition of License), 3 (Notification of Decision of Priority of License) and 3 (Public Notice of Decision of Priority of License), 2 (Disposition of Fishery License), 3 (Public Notice of Notice of Decision of Priority of License) and purport of oral argument, respectively.

2. Claims by the parties or relevant statutes;

A. The parties' assertion

(1) The defendant's assertion is as follows: first, the plaintiff did not pass through an administrative appeal against the disposition of this case; second, the lawsuit of this case is unlawful because the plaintiff did not have the standing to seek cancellation of the disposition of this case; second, the disposition of this case is legitimate in accordance with the relevant Acts and subordinate statutes; second, the plaintiff's objection against the above main safety ground of this case; first, as to the above main safety ground of Article 18 (3) 2 of the Administrative Litigation Act, since the plaintiff had already received an administrative appeal on the order of priority decision of fishery right which is related to the disposition of this case or is proceeding gradually for the same purpose, it is not necessary to separate administrative appeal against the disposition of this case pursuant to Article 18 (3) 2 of the Administrative Litigation Act; second, as to the standing to sue, the plaintiff had a standing to sue because it is in competition with the above gambal road for which the plaintiff obtained a fishery right of this case; second, the above disposition of this case was unlawful by the court below's determination of the order of priority order of fishery right of this case 101.

(b) Related statutes;

(1) Provisions pertaining to the requirements of action

(A) With respect to the principle of exclusive administrative disposition, Article 18(1) of the Administrative Litigation Act provides that a lawsuit seeking revocation of an administrative disposition shall not be filed without going through an adjudication of an administrative appeal in cases where the relevant law provides that a lawsuit seeking revocation of the administrative disposition may be filed in accordance with the relevant law. However, Article 18(3)2 of the same Act provides that a lawsuit seeking revocation of the administrative disposition may be instituted without filing an administrative appeal in cases where an adjudication of an administrative appeal has already been made on any of the dispositions taken step by step for the same purpose, and (b) with respect to standing to sue, Article 12 of the same Act provides that a lawsuit seeking revocation of the administrative disposition may be

(2) The Fisheries Act provisions

(A) Limits on area of fishing right

The current Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990) stipulates, unlike the former Fisheries Act, that the restriction on fishing ground area under Article 10 subparagraph 3 of the Act and Article 12 (1) and Article 12 (2) of the Enforcement Decree of the Fisheries Act shall be newly established, so that the holder of fishery right may not issue a license if the applicant for fishery business already acquired a fishery right (excluding a joint fishery) under Article 8 of the Fisheries Act, other than a fishing village fraternity or district fisheries cooperative (hereinafter referred to as a "fishing village fraternity"; hereinafter referred to as "fishing village cooperative") and the combined area of the fishing ground area of the newly applied application is more than 30 years (in calculating the fishing ground area, including the fishing ground area acquired by shares in calculating the fishing ground area).

(b)the priority of fishing licenses;

Article 13 (1) of the Fisheries Act, which provides for the method of priority determination, provides for the general method of priority determination for many applicants for a fishing license, shall give priority to those who have carried on, or have been engaged in, the same fishery as the applied for as the one for a license (or those who have carried on, or have been engaged in, the same fishery as the applied for for five years prior to the date of application) from among many applicants for a fishing license, and shall provide that if the above persons are re-competitive, the term of validity of the fishery right shall take precedence over those of the fishing ground at the time of application; Provided, That with respect to the special order of priority for fishing village fraternities, paragraph (4) of this Article provides that the waters of the fishing ground for which the fishing village fraternity wishes to obtain a license shall be located within the area adjacent to the fishing village fraternity and fall under any of the following subparagraphs (Article 13 (1) and (2) of the Fisheries Act, the term of validity of the fishery right is within 1,000 square meters prior to the expiration of the term of validity of the fishery right, notwithstanding paragraph (13).

(C) The process of licensing the fishing right

When the Mayor/Do governor who is the holder of a license for fishing right, etc. under Article 8 of the Fisheries Act grants a license for fishing right, etc., he/she shall do so within the scope of the development plan for fishing ground established in accordance with Article 4 of the Fisheries Act. An applicant for a license for fishing right shall also submit an application for priority decision under Article 6 of the Enforcement Decree of the Fisheries Act pursuant to the above development plan for fishing ground, and obtain a priority decision from the Mayor/Do governor after deliberation by the Mediation Committee under Article 89 of the Fisheries Act, and the Mayor/Do governor shall immediately grant a license for fishing right determined as priority by the Mayor/Do governor.

3. Determination as to the litigation requirements

(a) Whether they pass through the administrative appeal;

(1) Fact finding

As seen earlier, the Plaintiff applied for the priority decision on the instant fishery right in conjunction with Nonparty 4, and on January 12, 1993, the Defendant decided on January 12, 1993 that the fishery right of this case was priorityd. On February 27, 1993, the Plaintiff received a notification and filed an administrative appeal with the Administrator of the Fisheries Administration, who is the ruling authority, within the adjudication period, on February 27, 1993. However, on April 24, 1993, the Plaintiff received a ruling of dismissal from the Administrator of the Fisheries Administration.

(B) On April 27 of the same year, the Plaintiff received a notice of the above decision and filed a lawsuit seeking revocation of the above decision on May 6 of the same year, within the filing period, on the party members. On April 30 of the same year, the Defendant changed the claim to revoke the license of this case on January 31, 1994 according to the above order of priority.

【Premium】

Each of the evidence mentioned above, evidence No. 1-1(written appeal)2(written appeal), evidence No. 8-1(written appeal) and written appeal No. 8-1(written appeal)

(2) Determination on the above facts of recognition

As seen earlier, the Fisheries Act stipulates that the person who has the right to obtain a license shall obtain a license for the person who has been determined as the priority in the procedure prior to the disposition of the fishery right license shall obtain the license for the above priority decision. The plaintiff, after filing an application for the priority decision in competition with the above gambling paths pursuant to the Fisheries Act, applied for the priority decision, but the above gambling paths, etc. were decided to have the priority decision, the plaintiff filed a legitimate administrative appeal for the above priority decision within the period of the request of the Administrative Appeals Act, and subsequently filed a lawsuit to revoke the above priority decision and changed the claim into the lawsuit in this case. Thus, the above priority decision of the defendant and the disposition in this case all fall under the "disposition progress by step for the same purpose" as provided in Article 18 (3) 2 of the Administrative Litigation Act, and as long as the plaintiff has lawfully received the decision of the administrative appeal on the priority order which is the preceding disposition in this case, the plaintiff can seek the revocation without filing an administrative appeal. Thus, the change in this part of this part of the defendant's safety.

B. Whether standing to sue is qualified

Where several applicants for an administrative disposition such as authorization and permission have no choice but to be decided upon by non-permission, etc. to the other party in competition, the person who did not receive the disposition of permission, etc. has the law to seek revocation of the disposition even though he was not the other party to the disposition of permission, etc. (see Supreme Court Decision 91Nu13274 delivered on May 8, 192). As seen above, the plaintiff applied for a priority and priority decision for the license acquisition of the above gambling and the fishery right of this case, but decided in the second priority order, and decided in the second priority order, and the plaintiff asserted as the ground for the claim of this case. The plaintiff asserted as the ground for the claim of this case. The plaintiff satisfies the requirements as the first priority of the fishery right of this case, and the above gambling paths, etc. failed to meet the above requirements, and thus, the plaintiff alleged that the above 4th party and the above 4th party of this case were in a relationship of interest to the above 3rd party.

4. Whether the instant disposition is lawful

(a) Fact finding;

① At the time of the enforcement of the former Fisheries Act on December 1985, Nonparty 1 was a fishery right holder who acquired a fishery right about the fishing ground of about 70 degrees near the ocean area of the same year. However, each fishery right indicated in the attached Table No. 3 and No. 6 of the previous Fisheries Act, among the fishery rights of the above fright, became subject to a license again due to the expiration of the term on March 5, 1993, and the current Fisheries Act enters into force on August 1, 1990, when applying for a license again upon the expiration of the term of the above fishery right, the portion exceeding 30 degrees out of the total fishing ground constitutes a ground for disqualification of license under Article 10 subparag. 3 of the above Act and Article 12(1)2 of the Enforcement Decree of the same Act (hereinafter referred to as “Article 12(1)2 of the former Fisheries Act’s Enforcement Decree’s Act’s order of priority within 1,000 square meters from the above fishing ground.

② On April 1, 1992, in order to avoid the application of the prohibition of exceeding 30 years of fishing ground of the above Fisheries Act when filing an application for re-application of the fishery right after the expiry of the above fishery right, only the relationship of friendship with himself/herself, such as his/her relative relationship, obligation relationship, etc., and the non-party classical relationship with him/her, which is not capable of operating or operating the fishery, as indicated in the column of "the holder of fishery right indication of the above fishery right" as stated in the column of "the holder of fishery right indication of the above fishery right" as stated in attached Form 2. However, despite the transfer of some shares in the above register, the above fishery right was transferred solely until the expiration date of the above fishery right term of the above fishery right.

③ On March 5, 1993, the date of expiration of the existence of the above old fishery right, on October 192, 1992, filed an application for a decision on the priority of fishery license for each of the instant fishing grounds jointly with four co-owners on the original register of fishery rights in order to obtain a license for fishery rights, and also the application for a decision on priority of fishery license for each of the instant fishing grounds was concurrent with the Plaintiff who filed an application for a decision on priority of fishery license for each of the instant fishing grounds.

④ At the time of the above application, four non-party 4 claimed that (A) their respective fishing grounds of the instant fishing right have been in operation for five years from the same fishing ground as of the date of application under Article 13(1) of the Fisheries Act; (b) as of the time of application for the second appeal of the same Article, the term of validity of the fishing right in the relevant fishing ground; and (c) the portion of the fishing ground partially expanded from the existing fishing ground of the old fishing right is the case where they applied for a license of the same kind of fishery on other waters under the condition that they waive their existing fishing right of the attached No. 3 and No. 6 of the old fishing right indication No. 13(7) of the Fisheries Act (the corresponding fishing ground of waters within 1,000 meters from the coastline at full tide). The defendant also accepted the above assertion and rendered the order of priority as prescribed in Article 13(1) of the Fisheries Act, and thus, the case was issued.

5. However, among four persons other than the above fambling, there was no or no operation or engaged in the fambling-type business as a holder of the fishery right of this case except for the above fambing-type fambling-type fambling-type fambling-type fambling-type fambling-type.

④ The above rupture exercised its rights as the actual holder of the fishery right to the above rupture until March 5, 1993 with respect to the fishery right Nos. 3 and 6 of the old fishery right indication in attached Forms 3 and 6, and until March 5, 1993 with respect to the above fishery right (the above rupture, scarcity, kup, and red rupture were the right holder in the name of ownership). The above rupture did not waive it at all even in applying for priority or applying for the pertinent license. Accordingly, each of the above fishery rights was extinguished on March 5, 1993.

【Premium】

Each of the evidence mentioned above and evidence mentioned in Gap evidence 7-1 (written petition), 2 through 6, 8, 16, 28 (each written statement of statement), 25, 26 (each written statement of statement of investigation), 27, 33, 34, 42 (each supplementary investigation report), 39 (Investigation Report), 44 (Investigation Report), 45 (Notification of Case Handling Command), 46, 47 (Notification of Non-Corruption Officials), and each of the statements mentioned in Gap evidence 7-7, 9 through 15, 17 through 24, 29 through 32, 35 through 38 (each of the statements of statement) (excluding the parts rejected in the rear).

[Evidence evidence: Evidence No. 7, 9 through 15, 17 through 24, 29 through 32, 35 through 38, and evidence, part of testimony by an abnormal ship)

(2) Determination on the above facts of recognition

(A) First, the plaintiff's assertion is that the previous fishery right entered in the name of 4 other than the above gambi-ro ceases to exist at the expiration of 20 years including the period of extension permission, and it does not constitute "the expiration of the term of validity of the fishery right" under Article 13 (2) 1 of the Fisheries Act, which prescribes the priority order of the existing fishery right holder. However, this is a provision that grants priority to the existing fishery right holder in order to protect the technology and investment amount of the existing fishery right holder, and there is no reason to regard it differently as the case where the existing fishery right ceases to exist at the expiration of 20 years including the extension period

(B) However, on April 1, 192, the above gambling-out length applied for the order of priority of this case or the license to operate the fishery of the same kind as the applied fishery as the fishery of this case, although the above gambling-out type applied jointly with the above gambling-out type, the above gambling-out type, red field, gambing-out type, red wal, etc., which was transferred part of the public land of the holder of the fishery right register from the above gambling-out route, but they did not have been actually engaged in the fishery of this case, and as long as they do not fall under this, they cannot be viewed as the "person who has been engaged in the same kind of fishery as the fishery of this case" under Article 13 (1) of the Fisheries Act. Thus, the above gambling-out type and the disposition of the license to operate the fishery of this case cannot be deemed to have been in violation of the above provision which set forth the priority of the above provision.

(C) In addition, on April 1, 1992, a part of the above fishery right's shares are transferred only on the register of fishery rights to four persons such as the above lecture type on April 1, 1992, and in fact, he exercised the whole right of the above fishery right independently until the expiration date of the above fishery right's existence, and he applied for a license jointly with four persons such as the above lecture type, etc. only when he applied for a license of the above fishery right, but only when he did not pass on the co-ownership right holder of the above public book, it is necessary to avoid the application of the above prohibition of over 30th of fishing ground under the above Fisheries Act's 30th of fishing ground under the above law's 30th of fishing ground under the transfer of part of the right holder's ownership on the register, and the license disposition of the fishery right of this case acquired by four persons other than the above gamba type constitutes evasion of the provisions of the Fisheries Act's prohibition of over 30th of fishing ground.

(D) Furthermore, the defendant deemed to have waived the above fishery right before the expiration of the validity term of the above fright, and thus, on the condition of waiver of the above fishery right before the expiration of the validity term of the above fright under Article 13(7) of the Fisheries Act. The defendant applied the priority corresponding to the "when she intends to obtain a new same license on other waters," and applied the fishery right license of this case including the partial fishing ground extended to the fishing ground of the old fishery right, but as seen above, the above fright had been actually exercised as the fishery right of the above fright No. 3 and 6 until March 5, 1993, which is the expiration date of the existing fishery right, until March 5, 1993, which is the expiration date of the existing fishery right. Therefore, the disposition of this case, which was conducted on the premise of the waiver of the above fishery right, is unlawful in this point.

(E) Therefore, the instant license disposition is unlawful not only because it violates the priority provisions under Article 13 of the Fisheries Act, but also is made by false or other unlawful means due to the said gambling path.

4. Conclusion

Therefore, since the disposition of this case is unlawful, the plaintiff's claim seeking its revocation is justified, and it is so decided as per Disposition.

April 15, 1994

Judges Gangwon-gu (Presiding Judge) Han-Jil-gu

[Attachment Omission (One Fishery Right)]

[Attachment Omission (Second Fishery Right)]