Defendant 1 and nine others

Defendant

Lee Jong-hun and Kim Tae-chul (Public trial)

Attorney Ahn Chang-hwan et al.

Gwangju District Court Decision 2012Gohap756 Decided January 17, 2013

All appeals by the Defendants are dismissed.

1. The facts charged in this case and the summary of the judgment of the court below

The summary of the facts charged in the instant case is that “The Defendant, while not operating beyond the boundary line of Do in Gyeongnam-do and Do in Gyeongnam-do (hereinafter “instant permitted operation zone”) from the 107 degrees extension line from the boundary line of the permitted baseline fishing zone (the boundary line of 107 degrees extension line between the boundary line of Gyeongnam-do and Do in Gyeongnam-do; hereinafter “instant permitted operation zone”), he exceeded the “ boundary line of Do in Gyeongnam-do and Gyeongnam-do,” which is the boundary line of the operation zone.”

In regard to this, the lower court found the Defendants guilty of all the charges of this case on the ground that, on the premise that the maritime boundary line on the topographical map of the National Land Geographic Information Center in 1973 (“the instant permitted fishing zone”) was in operation beyond the instant permitted fishing zone beyond the boundary line on the boundary line of the Do Do Gyeongnam-do and Jeonnam-do,” which is the boundary line of the instant permitted fishing zone.

2. Summary of grounds for appeal;

A. The boundary line of the instant permitted fishing zone is “Mise-misunderstanding of facts, misunderstanding of legal principles, violation of the principle of no punishment without law, etc. (Chapter 1),” which is the boundary line of the instant permitted fishing zone.

(1) Since there is no customs and legal conviction that recognized the maritime boundary line on the topographical map of the National Land Geographic Information Institute in 1973 as the border line of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the 1973, it cannot be deemed that the administrative customary law established the maritime boundary line on the topographical map of the 1973 National Land Geographic Information Institute as the boundary line of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the 1973. Moreover, there is a topographical map created by the Do of the Do of the Do of the Do of the Do of the Do of the 1920s which is the coast of the Do of the 1973 National Land Geographic Information Institute.

In addition, on the topographical map made by the Land Survey Division of the Chosundo in 1920, the boundary line of the Gyeongnam-do and Jeonnam-do in this topographical map is not clearly indicated, so the boundary line of the Gyeongnam-do in this topographical map is not confirmed. No other statute exists that clearly define the boundary line of the Gyeongnam-do in the Gyeongnam-do and Jeonnam-do.

Ultimately, it cannot be deemed that there exists a legal standard for the boundary line between Gyeongnam-do and Do, and there is no other standard to confirm the boundary line, and it cannot be said that the Defendants were working outside the instant permitted fishing zone beyond the boundary line.

(2) Even if there is an explicit legal standard on the boundary line of Do in Gyeongnam-do and Gyeongnam-do, the legal nature of the boundary line of Do in Gyeongnam-do is not the boundary line of the administrative district under the jurisdiction of Gyeongnam-do and Gyeongnam-do. Thus, the boundary line of Gyeongnam-do in Gyeongnam-do is not determined on the basis of the boundary line of national land information source topographical map, but rather on the basis of the maritime boundary line of Do in Gyeongnam-do as amended by Presidential Decree No. 10945 of Nov. 13, 1982. Article 4 [Attachment Table 4] of the Fishery Resources Protection Decree as amended by Presidential Decree No. 10945 of Nov. 13, 1982.

Even if the legal nature of the boundary line of the Do in Gyeongnam-do and Jeonnam-do is viewed as the boundary line of the administrative district under its jurisdiction, it does not change the boundary line of the Do in Gyeongnam-do and Jeonnam-do based on the boundary line of the establishment of the Decree on the Protection of Marine Resources. The defendants do not operate a fishing outside of the permitted fishing zone in this case when the boundary line of the establishment of the Decree

(3) Therefore, even though the Defendants were engaged in operations beyond the maritime boundary line on the 1973 topographical map of the National Land Geographic Information Institute, they cannot be deemed to have been engaged in operations beyond the instant permitted operations area beyond the boundary line on the Do boundary line on the Gyeongnam-do and Jeonnam-do. Nevertheless, the lower court found the Defendants guilty of all the charges of this case on the contrary, and there was an error of misapprehending the legal principles as to the Do boundary line on the Do boundary line on the Do boundary line on the Gyeongnam-do and Jeonnam-do,

B. Erroring of facts and misunderstanding of legal principles as to intention (section 2)

Even if the maritime boundary line on the topographical map of the 1973 National Land Geographic Information Institute can be seen as the boundary line of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the 1973,

C. misunderstanding of legal principles as to errors in law (section 3)

Defendants may not be punished for the Defendants pursuant to Article 16 of the Criminal Act, as there are justifiable grounds for misunderstanding that the sea in which fishing was conducted does not constitute a crime in the instant permitted fishing zone.

3. Judgment of the court below

A. As to the First Claim

(1) Article 98 Subparag. 8 of the Fisheries Act provides that “any person who violates an order to coordinate, etc. fisheries under Article 61” shall be punished, and Article 61(1) provides that administrative agencies shall order necessary matters for the control, etc. of fisheries, and Article 61(2) provides that “the restriction or prohibition on the operating area of inshore fisheries” in Article 40(1) [Attachment 3] of the Enforcement Decree of the Fisheries Act, which is delegated by Article 61(2) of the Fisheries Act, provides that “the operating area of inshore fisheries and the permitted number of inshore fisheries” in Article 40(1) [Attachment 3] of the Enforcement Decree of the Fisheries Act, upon the delegation of Article 61(2) of the Fisheries Act, defines the operating area of inshore net fishing in the instant case as the operation area of the instant fishing area and the sea area of Jeonnam-do. Meanwhile, the instant permitted area is divided from the border-do, Ulsan Metropolitan City, and the intersection point of coastline to the intersection of the coast of 107 degrees, both latitude-do.”

In addition to the language and text of the above provision and the Enforcement Decree of the Fisheries Act or the former Enforcement Decree thereof, there is no separate provision defining the Do boundary line of the Gyeongnam-do. It is reasonable to view that the boundary line of the Gyeongnam-do and Gyeongnam-do under Article 40(1) [Attachment 3] of the Enforcement Decree of the Fisheries Act refers to the boundary line of the jurisdiction of the Gyeongnam-do under Article 4(1) of the Local Autonomy Act, which provides for the jurisdiction of the local government as the local government, because there are several cases where the boundary line of the coast or the boundary line between the coast line of a specific local government or a specific local government when determining the area of inshore fishery other than the instant permitted fishing zone, and there is no separate provision defining the boundary line between the coast line of the local government or the local government. In addition, it is reasonable to view that the boundary line of the Gyeongnam-do and Gyeongnam-do under Article 40(1) [Attachment 4] of the Local Autonomy Act, which provides for the jurisdiction of the local government.

(2) Article 4(1) of the current Local Autonomy Act provides that “The name and jurisdiction of a local government shall be the same as before, and the name and jurisdiction of a local government shall be changed, or the abolition, establishment, division, or consolidation of a local government shall be determined by Act: Provided, That the boundary of a local government and the alteration of a Chinese name shall be determined by Presidential Decree.” In light of the history of amendment under Article 4(1) of the Local Autonomy Act, the criteria for “previous” in the basis of the determination of a local government’s jurisdiction under the main sentence of Article 4(1) of the current Local Autonomy Act are successively listed in the first enacted law, and thus, the boundary of a local government’s jurisdiction, including Article 4(1) of the Local Autonomy Act, is the primary standard. In other words, the provisions pertaining to jurisdiction, including Article 4(1), are giving legal effect to the boundary of a local government’s jurisdiction that existed prior to the enactment of the Republic of Korea’s Act. Such boundary of a local government’s jurisdiction is maintained as long as each statute or Presidential Decree provides for changes in administrative law.

(3) Therefore, the boundary of the jurisdiction of the local government on public waters should be confirmed first according to the above criteria, which existed at the time of August 15, 1948, and it can be said that it is a matter of fact-finding confirming the existence and form of the maritime boundary at the time.

Therefore, Article 111 of the Ordinance of the Ministry of Government Administration and Home Affairs (Ordinance of the Ministry of Do, the location and jurisdiction of the Do, and the name and jurisdiction of the Gun, and the name and jurisdiction of the Gun on December 29, 1913, which set the jurisdiction of the Do and the jurisdiction of the Do, which set the jurisdiction of the Do and its jurisdiction of the Do as of August 15, 1948, shall continue to have its effect in accordance with Article 11 of the Military Administration Act of November 5, 1945. Thus, the jurisdiction of the local government of the Republic of Korea is deemed to have maintained the local administrative zone that existed at the time of sunset following the territorial local administrative zone of the Joseon Dynasty and the Japanese colonial era.

In accordance with the "Regulations on the Execution of General Do Survey" in the Japanese colonial era (amended on January 12, 1914) (amended on January 1, 1914), the boundary line on the topographical map produced by the Land Survey Division in the Japanese colonial era was indicated by the maritime boundary line distinguishing between the Do and the Gun (Supreme Court Decision 2005Hun-Ma2 Decided July 30, 2009, etc.) (According to the Constitutional Court Order 2005Hun-Ma2 Decided July 30, 2009, the Land Survey Division in the Japanese colonial Division has produced several topographical maps after 1918, and some of them have not been indicated the maritime boundary line). However, when defining the boundaries of the Do and the Gun for the first time, it appears that the boundary line was set on the basis of the central line of mountain, lower, and depth and depth of sand on the Do and Gun as well as on the basis of natural conditions (the boundary of the State and Gun).

Therefore, barring other special circumstances, the maritime boundary of the previous local government should be confirmed based on the nearest date to August 15, 1948, among the topographical maps made by the Land Survey Division of the Shipbuilding General. However, even if the topographical map manufactured by the Land Survey Division of the Shipbuilding General does not exist at present or the maritime boundary on the above topographical map is not indicated properly, it cannot be presented that there is a part irrelevant to the jurisdiction of the local government in light of the nature of the local government as the constituent elements of residents, areas, and autonomy. Since the topographical map made by the Land Survey Division of the Shipbuilding General is indicated most of the national basic map issued by the National Land Geographic Information Board after the tidal wave, the maritime boundary of the previous local government should be determined based on the nearest date to August 15, 1948. In addition, if the maritime boundary of the topographical map is not indicated explicitly, it shall be determined by the administrative customary law, and if it is not indicated by the administrative customary law, it shall be determined by the Constitutional Court reasonably from the Constitutional Court Decision 2009Hun-Ga409.

(4) According to the evidence duly adopted and examined by the court below and the court below, in the topographical map produced by the Land Survey Division of the Chosundo in 1920, only some of the Gyeongnam-do and Jeonnam-do are indicated. On the other hand, in the topographical map published by the National Land Geographic Information Institute in 1973, the overall maritime boundary line of the Gyeongnam-do and Jeonnam-do is indicated as a whole, in the topographical map published by the National Land Geographic Information Institute in 1973, and in the national basic map (land topographical map) issued by the National Land Geographic Information Institute, the overall maritime boundary line of the Gyeongnam-do in the Gyeongnam-do and Jeonnam-do are various types by the time of issuance, which is the most close to August 15, 1948.

(5) Examining these facts in light of the legal principles as seen earlier, it is difficult to confirm the maritime boundary of the Gyeongnam-do and Jeonnam-do solely holding the above map because the maritime boundary of the Gyeongnam-do was not properly indicated on the topographical map made by the Land Survey Division of the 1920 Shipbuilding, and it is difficult to verify the maritime boundary of the Gyeongnam-do and Jeonnam-do. The other topographical map of the land survey division of the shipbuilding general surveying division, which is marked the maritime boundary of the 1948.8.15, the maritime boundary of the 1973 topographical map, which is the maritime boundary on the 1973 topographical map, shall be confirmed based on the maritime boundary line of the 1973 Gyeongnam-do and Jeonnam-do, the maritime boundary on the 1973 topographical map of the 1973 National Land Information Center, which was located at the time of August 15, 194.

(6) On the other hand, the border line in the Gyeongnam-do and Jeonnam-do, which existed at the time of August 15, 1948, did not appear to have been otherwise determined by the law or Presidential Decree, which is based on the jurisdiction of each law, and there is no evidence to deem that any change has been made due to a legal ground, such as administrative customary law, and thus, it is maintained up until now (the defendants are in violation of Article 4 subparag. 4 [Attachment 4] of the Decree on the Protection of Fishery Resources as amended by Presidential Decree No. 10945 of Nov. 13, 1982, the boundary line of the Gyeongnam-do and Jeonnam-do as the new boundary line of the fishery resources protection order was established, so that the maritime boundary line in the Gyeongnam-do and Jeonnam-do is different. However, related to Article 4 subparag. 4(b) of the Decree on the Protection of Fishery Resources, and its boundary line cannot be determined differently from the boundary of the Gyeongnam-do's jurisdiction.

(7) Ultimately, according to the evidence duly adopted and examined by the court below and the court below, the defendants can recognize that the maritime boundary line on the topographical map of the 1973 Dogggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggg

B. As to Chapter 2:

In light of the following circumstances acknowledged by the evidence duly adopted and examined by the court below and the court below, i.e., ① explicitly stated the permitted area in the fishery permit certificate of the defendants, ② the boundary line of the Gyeongnam-do and Jeonnam-do was formed on the basis of the maritime boundary on the topographical map published by the National Land Information Board in 1973 from a considerable long time to a long time, and the defendants were under control and punishment based on the maritime boundary line on the topographical map published by the National Land Information Board in 1973 from a long time to 1973, the defendants, who are fishery workers, are deemed to have been well aware of the maritime boundary line on the topographical map published by the National Land Information Board in 1973, and ③ the defendants, in the investigation agency, argued that "the maritime boundary line of the Gyeongnam-do and Jeonnam-do" is the straight line of the Gyeongnam-do. However, it is difficult to see that the defendants did not have any obvious intent or reason beyond this part of the permit area.

C. As to the third proposal

(1) Article 16 of the Criminal Act provides that an act of misunderstanding that one's act does not constitute a crime under the law shall not be punishable only when there is a justifiable ground for misunderstanding. However, if one's own act is aware that it does not constitute a crime permitted under the law in his own special circumstances, it shall not be punishable. Whether there is a justifiable ground or not should be determined depending on whether the actor failed to recognize the illegality of his act as a result of failure to perform his/her act even though he/she could have sufficiently known the possibility of recognizing the illegality of his/her act if he/she had done so with his/her intellectual ability, but failed to do so. The degree of efforts necessary for recognizing the illegality should be determined differently depending on the situation of his/her act, the offender's awareness ability of an individual, and social group to which the actor belongs (see, e.g., Supreme Court Decision 2005Do3717, Mar. 24, 206).

(2) According to the record, the Ministry of Public Administration and Security may respond to the Defendants’ assertion, such as (i) whether there is an explicit legal basis to distinguish the maritime boundaries between local governments; (ii) whether a topographical map issued by the National Land Information Service in 1973 includes the maritime boundary line; (iii) there is no indication of the maritime boundary line in the topographical map issued thereafter; and (iv) the National Land Information Service expressed the position that the maritime boundary line on the topographical map is merely a sign indicating that the maritime boundary on the topographical map is unreasonable to the administrative agency to which the islands belong and is irrelevant to the maritime boundary of the local government’s jurisdiction.

(3) However, in light of the circumstances described in the preceding B B, the Defendants, as a fishery employee, seem to have been engaged in fishing operations over the boundary line of Gyeongnam-do and Gyeongnam-do even though they were aware that they exceeded the instant permitted fishing zone. Even if the Defendants were to have been aware that they did not commit a crime, this is merely a wrong interpretation of the circumstances described in the above (2) in favor of themselves, and thus does not constitute a mistake in the law with justifiable grounds, and it cannot be deemed that there was a case where the judgment of innocence was rendered against part of the fishery personnel operating outside the instant permitted fishing zone. Accordingly, this part of the Defendant’s assertion is without merit.

4. Conclusion

Thus, the defendants' appeal is without merit and it is dismissed under Article 364 (4) of the Criminal Procedure Act.

Judges Park Jong-chul (Presiding Judge)