Method and standard to determine whether there is a possibility of expectation of lawful conduct of the accused

Article 27 (4) and Article 98 subparagraph 4 of the Fisheries Act

Supreme Court Decision 2005Do10101 Decided October 23, 2008 (Gong2008Ha, 1620) Supreme Court Decision 2013Do15616 Decided May 12, 2016 (Gong2016Sang, 809)

Defendant

Prosecutor

Jeonju District Court Decision 2016No1906 decided September 22, 2017

The judgment of the court below is reversed, and the case is remanded to the Jeonju District Court Panel Division.

The grounds of appeal are examined.

1. In order to determine whether the defendant is likely to expect a lawful act, it is necessary to determine whether there is a possibility of expectation from the perspective of the average person with a social average person instead of the actor under specific circumstances at the time of the act (see Supreme Court Decision 2005Do101, Oct. 23, 2008, etc.).

2. The reasoning of the lower judgment and the evidence duly admitted reveal the following.

A. On May 26, 2015, Non-Indicted 1 completed the registration of transfer of fishery right with respect to Non-Indicted 2’s 1/4 (5) shares (1 omitted) (20) among the ○ Farming License (1 omitted)’s license, and around that time, Non-Indicted 1 left the Defendant, who is an intermediary for the management of the relevant fishing ground (hereinafter “instant fishing ground”).

B. On May 2015, the Defendant also managed the fishing ground (license number 2 omitted) of the ○ Farming License (license number 2 omitted) with some of the fishery rights, and the fishing ground (license number 3 omitted) of the ○ Farming License (license number 3 omitted) (hereinafter “fishing ground (license number 3 omitted) with which Nonindicted 4, who is the Defendant’s wife, owned the fishery right. However, as to the fishing ground (license number 2 omitted), Nonindicted 3’s △△△ in relation to the fishing ground (license number 2 omitted), and (license number 3 omitted), Nonindicted 4’s △△ in relation to the fishing ground (license number 3 omitted), and Nonindicted 4’s △△ in relation to the fishing ground (license number 3 omitted), the Defendant was designated as a management vessel pursuant to Article 27(1) of the Fisheries Act.

C. Around May 2015, the Defendant visited the ○○ Military Office and asked Nonindicted 5, a public official in charge of the instant fishing ground, whether the head of the instant fishing ground could be used as a management vessel in the instant fishing ground, which is designated as a management vessel of the fishing ground (license No. 3 omitted). Since the Ordinance on the Criteria for the Number and Use of the Fishing Ground Management Vessel (hereinafter “Ordinance of the ○○○ Military”) stipulates from Nonindicted 5 that the number of the fishing vessels shall be one of the management vessels per case, the Defendant may not be designated as a management vessels of several fishing grounds, and the Defendant responded to the purport that the designation of the fishing ground of the instant fishing ground shall be revoked (license No. 3 omitted) and that the designation of the fishing ground of the instant fishing ground shall be obtained newly for the instant fishing ground.

D. After that, the Defendant did not file an application for the designation or approval for use of the management line with respect to the fishing ground of this case, and upon the arrival of the period of taking place, the Defendant captured 75 km using △△△ from the fishing ground of this case on November 15, 2015. At the time, △△ho was designated as the management line, but it was impossible to operate due to breakdown from September 2015.

3. The lower court determined as follows on such factual basis.

A. Article 27 of the Fisheries Act provides that a fishery right holder shall not use a fishing vessel necessary for the management of fishing grounds of his/her fishery (hereinafter referred to as “management vessel”) designated by the head of a Si/Gun/Gu only for a fishing vessel owned by the fishery right holder or leased fishing vessel (Article 27(1)). A fishery right holder who fails to have a management vessel for a fishing ground of licensed fishery may use a fishing vessel designated as such or fishing vessel for fishery business permitted or reported under Article 41(1) and (2), 41(3)1 or 47(1) of the Fisheries Act with approval from the head of a Si/Gun/Gu (Article 3). A fishery right holder designated to use a management vessel pursuant to the above paragraph(1) shall not use a management vessel to capture, gather, or cultivate marine animals and plants on waters other than a designated fishing zone or an area approved by the head of a Gun/Gu (Article 27(4)). The head of a Si/Gun/Gu may determine the scale of a management vessel, designation of a management vessel and fishing vessel by type of fish and fishing gear.

B. Accordingly, Article 2 of the ○○-Gun Ordinance limits the number of fishing grounds as shown in [Attachment Table 1] only to those who possess two or more fishing grounds (including public land) and one person shall limit the number of fishing grounds to one person for fishing ground management, and shall limit the number of fishing grounds to not more than one person for fishing ground management (including public land) and where a festival-type fishing ground is more than four persons, not more than one person for a festival-type fishing ground (paragraph 3). However, in [Attachment Table 1], Article 2 of the Ordinance on ○○-Gun Ordinance provides that the number of fishing grounds shall be limited to one person for each fishing ground holder, one person for a personal fishing ground, and one person for each share holder for a common fishing right.

C. In light of the systematic structure of the relevant legal norms, the provisions of the above ○○○ Military Ordinance (hereinafter “instant Ordinance”) shall not be construed as “only one management line may be used in one recommended fishing ground, and several management lines shall not be used.” The said provision shall not be construed as “requesting that a number of management lines should be owned if multiple management lines are owned in one recommended fishing right.”

D. However, as to the erroneous interpretation of the instant Ordinance, the public official in charge of ○○○-gun asked the Defendant whether the Defendant could use the fishing vessel designated as a management vessel of another fishing ground at the same time as the management vessel of the instant fishing ground, the public official provided guidance that the designation of a management vessel of another fishing ground should be revoked and that the designation of a management vessel of the instant fishing ground should be obtained and used after being newly designated.

E. It is difficult to expect that the Defendant would cancel the designation of a management vessel for other fishing grounds, such as a public official’s explanation, and undergo a new procedure for designating the fishing ground of this case, in a situation where various fishing grounds are short every day and operations are conducted at the same time. It is also difficult to expect that the Defendant, maintaining his livelihood with fisheries, would be able to use a fishing vessel designated as a management vessel for other fishing grounds through the approval of use, etc. of the instant ordinance. It is also difficult to expect that the Defendant, maintaining his livelihood with the fishing industry, would be able to properly understand the instant ordinance and allow the Defendant to use a fishing vessel designated as a management vessel for other fishing grounds through the approval of use

F. Ultimately, considering the above circumstances, it is difficult to expect that the Defendant is lawful in managing the fishing ground of this case, such as the use designated or approved by the Defendant, etc., and the facts charged of this case does not constitute a crime.

4. However, in light of the above legal principles, we cannot accept the judgment of the court below for the following reasons.

A. In light of the content of the Defendant’s questioning Nonindicted 5 by the public official in charge of the ○○ Military, the Defendant was well aware that around May 2015, the Defendant had already known that it should take procedures, such as the designation of the management line or the approval for use, to use the management line in the instant fishing ground.

B. According to the relevant laws and regulations, even if a fishing ground was designated as a management vessel, it is true that the same fishing vessel can be used as a management vessel in other fishing grounds upon obtaining the approval of the head of the Si/Gun/Gu. However, as if Nonindicted 5 had to use the same fishing vessel as a management vessel after being separately designated for each fishing ground managed by Nonindicted 5, it is true that the Defendant provided wrong guidance to the Defendant. However, even based on the guidance of Nonindicted 5, the Defendant revoked the designation of a management vessel for the fishing ground of this case (license number 3 omitted) or (license number 2 omitted) and obtained a new designation for the fishing ground of this case, it was possible for the Defendant to use the fishing ground of this case as a management vessel

C. Nevertheless, during the period from May 2015 to November 2015, the Defendant did not file an application for designation or approval of the use of the instant fishing ground with the head of ○○○○ Gun by the aforementioned means. As to whether there exist methods of legitimate management of several fishing grounds using one fishing vessel, the Defendant sought advice from higher administrative agencies, such as the Ministry of Oceans and Fisheries, or legal experts, or applied for the designation or approval of the management vessel with respect to △ho or △△ho, and when the disposition of refusal is issued, the Defendant used the instant fishing ground as the management vessel in the instant fishing ground, which is a water surface other than the fishing zone designated by △△△△, without due care for legal disputes.

D. The public official in charge of ○○○-gun failed to apply for approval for use of the instant fishing ground because the Defendant was unaware of the easy way to obtain approval for use from the head of ○○-Gun with respect to △hoho Lake or △△ Lake, and even though △△ Ho-ho, who was designated as a management vessel of the instant fishing ground, was unable to navigate due to breakdown from September 2015, 2015, there was no time to obtain the designation or approval of the use of the new management vessel from the head of ○○-Gun because of the short of the period of recovery, such circumstance cannot be said to be a ground for sentencing for the violation of the Fisheries Act, apart from the fact that it can be seen as a ground for sentencing for the violation of the Fisheries Act, there was no possibility that the Defendant would have been able to expect

5. Nevertheless, the lower court determined that it is difficult to expect a lawful act of the Defendant solely for the foregoing reasons, and reversed the first instance judgment convicting the Defendant of the facts charged of this case and rendered a not guilty verdict. In so determining, the lower court erred by misapprehending the legal doctrine on the possibility of expectation, thereby adversely affecting the conclusion of the judgment. The allegation contained in

6. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Jae-chul (Presiding Justice)