Defendant

Prosecutor

Lee Hong-heat, Lee Jong-sung (Public trial)

Attorney Terms of Office

Changwon District Court Decision 2016DaMa431 decided January 25, 2017

The prosecutor's appeal is dismissed.

1. Scope of the judgment of this court;

The court below acquitted all of the defendants on the violation of the Ship Safety Act and the violation of the Fishing Vessels Act. The prosecutor filed an appeal against the whole judgment of the court below on the grounds of misconception of facts and misapprehension of legal principles, but in the statement of grounds for appeal, the prosecutor asserted the grounds for appeal only on the actual violation of the Fishing Vessels Act (in relation to the violation of the Ship Safety Act, the prosecutor, in the statement of grounds for appeal, and in the case of similar cases after the prosecution of this case, clearly sought dismissal of the appeal. Accordingly, the part of the violation of the Ship Safety Act was exempted from the object of public defense between the parties, and there is no other part to determine ex officio.

2. Summary of grounds for appeal;

The Defendant extended the place of closure by fixing the acrylic board on the side wall of the upper structure of the fishing vessel owned by him as a V, and thereby, the gross tonnage of the fishing vessel was changed. Since the gross tonnage is stated in the fishing vessel inspection certificate, the act of expanding the place of closure is subject to a provisional inspection. Nevertheless, the lower court erred by misapprehending the facts of the lower judgment and by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

3. Determination

A. As to the modification of indictment

In the judgment on the grounds of appeal, prior to the judgment on the grounds of appeal, the Prosecutor’s 2-3 cases of Paragraph (b) of Article 1-B of the facts charged (2-11 of the judgment of the lower court), the Prosecutor deleted “the length, width, depth, or the main part of the vessel, or the alteration or repair having an impact on the strength, secrecy, or fire-prevention of the hulls by the alteration of the length, depth, or the main part of the vessel, and applied for an amendment of the indictment with the content that “the tonnage under the provisions” in Paragraph (b) of Article 1-B of the facts charged (2-2 of the judgment of the lower court) is “the gross tonnage” and this Court permitted the amendment of the facts charged, but the judgment of the lower court shall not be reversed ex officio for this reason.

B. Summary of this part of the facts charged

The Defendant is the owner and captain of a charter fishing boat ○○○○○○○○○ (9.77 tons, hereinafter “instant vessel”).

Any person who intends to change matters entered in a fishing vessel inspection certificate shall undergo a temporary inspection, as prescribed by Ordinance of the Ministry of Oceans and Fisheries, and shall not use a fishing vessel which has not undergone an inspection for navigation or fishing.

Nevertheless, the Defendant used the instant vessel for navigation or operation on 53 occasions between July 9, 2015 and March 5, 2016, without undergoing a provisional inspection, even though the volume of the upper structure of the instant vessel was 15.817 cubic meters and the gross tonnage was increased by approximately two tons.

C. The judgment of the court below

The court below found the defendant not guilty on the ground that the above installation of an Acry board constitutes "a modification or repair affecting the strength, watertightness, or fire safety of the hull" or "a change that may affect the seaworthiness of a fishing vessel or the maintenance of safety of human life due to a maritime accident, etc." although the defendant was found to have installed an Acry board in the opening space of the upper structure of the hull, considering the structure, form, location of installation, and ease of escape and attachment of the Acry board, etc. of the Acry board, it does not constitute "a modification or repair that affects the strength, watertightness, or fire safety of the hull" or "a modification that is likely to affect the maintenance of the seaworthiness of a fishing vessel or the maintenance of human safety due to a maritime accident, etc." The court below found the defendant not guilty on the ground that there is no other evidence to prove it.

D. Judgment of the court below

1) Relevant statutes

m. Fishing Vessels Act

Article 13 (Registration and Record of Fishing Vessels)

(1) The owner of a fishing vessel or the owner of a vessel prescribed by Ordinance of the Ministry of Oceans and Fisheries shall register the fishing vessel in the fishing vessel register with the head of the competent Si/Gun/Gu having jurisdiction over the port or port where the fishing vessel or vessel mainly enters or departs from the port or port (hereinafter referred to as "port of loading"), as prescribed by Ordinance of the Ministry of Oceans and Fisheries. In such cases, a fishing vessel falling under Article 2 of

Article 17 (Modification of Registered Matters)

Where registered matters under Article 13 (1) are changed, the owner of a fishing vessel shall apply for registration of change, as prescribed by Ordinance of the Ministry of Oceans and Fisheries.

Article 21 (Inspection of Fishing Vessels)

(1) The owner of a fishing vessel shall undergo an inspection by the Minister of Oceans and Fisheries classified as follows, as prescribed by Ordinance of the Ministry of Oceans and Fisheries, on the equipment of the fishing vessel under Article 3 (including the full load line mark under Article 4, in cases of more than 24 meters in length): Provided, That this shall not apply to a fishing vessel prescribed by Ordinance of the Ministry of Oceans and Fisheries, such as

1. Regular inspection: A precise inspection conducted when used for the first purpose of navigation or when the term of validity of a fishing vessel inspection certificate under Article 28 (1) expires;

2. Interim inspection: A simple inspection conducted between regular inspections and the following regular inspections:

3. Special inspection: A simple inspection conducted when used temporarily for a special purpose as prescribed by Ordinance of the Ministry of Oceans and Fisheries;

4. Provisional inspections: Inspections conducted by the Minister of Oceans and Fisheries when the Minister deems it particularly necessary, in addition to inspections under subparagraphs 1 through 3.

Article 27 (Issuance, etc. of Inspection Certificates)

(1) The Minister of Oceans and Fisheries shall issue an inspection certificate according to the following classifications:

1. Where a fishing vessel passes a regular inspection under Article 21 (1) 1, a fishing vessel inspection certificate (the type, name, the maximum number of persons on board, limited pressure, the location of load load line, etc. of the fishing vessel shall be stated);

Article 44 (Penal Provisions)

(1) Any of the following persons shall be punished by imprisonment for not more than one year or by a fine not exceeding 10 million won:

4. A person who uses a fishing vessel for navigation or fishing operations without undergoing an inspection of fishing vessels under Article 21;

7. A person who uses a fishing vessel for navigation or fishing, in violation of the matters concerning the maximum number of persons on board, restricted weather pressure, location of load load line, etc. entered in a fishing vessel inspection certificate under Article 27 (1) 1;

Article 53 (Fine for Negligence)

(1) Any of the following persons shall be punished by an administrative fine not exceeding one million won:

4. A person who fails to file an application for registration of changes under Article 17;

7. A person who fails to undergo an inspection of fishing vessels under Article 21 (1) without justifiable grounds;

【Enforcement Rule of the Fishing Vessels Act

Article 21 (Application, etc. for Registration)

(1) A person who intends to register a fishing vessel pursuant to Article 13 (1) of the Act shall submit an application for registration of a fishing vessel, an application for registration of change of a fishing vessel, or an application for permission for change of a fishery business under attached Form 27 to the head of the competent Si/Gun/Gu having jurisdiction over the port of registry pursuant to Article 22 (1) along with the following documents: Provided, That where the head of the competent Si/Gun/Gu who has granted permission for building a fishing vessel or permission for building a fishing vessel applies for registration, he/she shall not attach

2. Certificate of gross tonnage of fishing vessel;

Article 23 (Matters to be Registered)

(1) Upon receipt of an application under Article 21 (1), the head of a Si/Gun/Gu shall enter the following matters in the fishing vessel register in attached Form 28:

11. Gross tonnage;

12. Total volume of the closing place;

(a) The following on decks:

(b) On-board decks;

(1) The marbation of the player;

(2) Purpose of missionary watch

(3)For the bususususus

(iv)the deck room.

(5) The entry of any other place;

13. Total volume of the exclusion place;

(a) The marry of the player;

(b) Purpose of missionary watch;

(c) Enemy of brushes;

(d) The volume of decks;

(e) Purpose of other places;

Article 47 (Extraordinary Inspection)

(1) Cases where the owner of a fishing vessel is required to undergo a provisional inspection under Article 21 (1) 4 of the Act shall be as follows:

6. Where he/she intends to modify the details entered in a fishing vessel inspection certificate under Article 27 (1) 1 of the Act: Provided, That this shall not apply to an alteration of minor matters not accompanied by the alteration of fishing vessel facilities under Article 3 of the Act, such as a change of the name of fishing vessel and port of registry;

Article 63 (Form, etc. of Inspection Certificate)

(1) Forms, such as certificates of inspection, certificates of examination, certificates of confirmation of building, manufacturing, and maintenance under Article 27 (1) of the Act, shall be as follows:

1. A fishing vessel inspection certificate under Article 27 (1) 1 of the Act;

(a) A fishing vessel of less than 24 meters in length: Attached Form 61;

Article 64 (Entries, etc. in Inspection Certificates of Fishing Vessels)

(1) The maximum number of persons on board and limited pressure to be entered in a fishing vessel inspection certificate under Article 27 (1) 1 of the Act shall comply with the standards prescribed and publicly notified by the Minister of Oceans and Fisheries.

(2) The maximum number of persons on board under paragraph (1) shall be divided into persons other than seafarers and seafarers temporarily boarding a fishing vessel, including any of the following persons. In such cases, persons on board a fishing vessel due to a marine accident or other inevitable reasons shall be excluded from the calculation of the maximum number of persons on board:

1. Family members of fishing vessel crew members;

2. The owner of a fishing vessel (including the manager of a fishing vessel and the lessee of a fishing vessel), employees of the fishing vessel company and workers engaged in repair of fishing vessels;

3. A person boarding a fishing vessel used for affairs concerning testing, inspection, guidance, control, inspection, teaching, etc. to perform the relevant affairs;

4. A person who performs duties other than those of fishing vessel crew members, such as customs officers, quarantine officials, pilots, etc.

5. A fishing passenger boarding a fishing boat under Article 25 of the Fishing Management and Promotion Act;

6. A person boarding a vessel for diving fisheries under Article 29 (1) 1 of the Enforcement Decree of the Fisheries Act.

7. Any person other than seafarers on board a fishing vessel which has undergone a special inspection under Article 46 (1);

8. A person other than seafarers on board a fishing place management vessel under subparagraph 3 (c) of attached Table 2 of the Enforcement Decree of the Fishing Management and Promotion Act;

9. A person other than seafarers on a fishing ground management ship under Article 5 of the Rules on Designation and Management of Leisure Fishing Grounds;

(3) Where the Minister of Oceans and Fisheries deems it particularly necessary to ensure safety in navigation of fishing vessels, he/she may impose necessary conditions of navigation on the relevant fishing vessel in addition to the maximum number of persons on board, limited pressure and load load line. In such cases, the Minister of Oceans and Fisheries shall enter such conditions in

2) Relevant legal principles

The principle of no punishment without the law requires that crimes and punishments be provided by law in order to protect individual freedom and rights from the arbitrary exercise of the State's penal authority. In light of such purport, the interpretation of the penal law should be strict, and the excessively expanded interpretation or analogical interpretation of the meaning of the explicit penal law in the direction unfavorable to the defendant is not permitted as it violates the principle of no punishment without the law (see, e.g., Supreme Court en banc Decision 92Do1428, Oct. 13, 1992). Meanwhile, the Enforcement Decree of the law cannot modify or supplement the contents of the rights and obligations of individuals provided by the law without delegation of the law as the mother corporation and does not provide new contents that are not provided by the law, and in particular, it is against the principle of no punishment without the law to expand the target of punishment beyond the explicit delegation of the law. Therefore, such Enforcement Decree goes beyond the limit of delegated legislation (see, e.g., Supreme Court en banc Decision 2015Do16014, Feb. 16

(iii) the board;

According to Article 21 subparag. 4 of the Fishing Vessels Act and the main sentence of Article 47 subparag. 6 of the Enforcement Rule of the same Act, if the owner of a fishing vessel intends to change the details entered in a fishing vessel inspection certificate, the fishing vessel owned by him/her shall be subject to temporary inspection. Thus, in order for the Defendant to be punished for navigation or fishing of the instant vessel without undergoing a temporary inspection, first of all, the “gross tonnage” shall be examined from whether

However, there are items related to the gross tonnage in the attached Form 61 of the fishing vessel inspection certificate under Article 63(1)1(a) of the Enforcement Rule of the Fishing Vessels Act, and in fact, the fishing vessel inspection certificate (Evidence No. 90 pages) of July 9, 2015 on the vessel of this case stated "9.7 gross tonnage". Thus, there is no room to view that the gross tonnage is included in the contents stated in the fishing vessel inspection certificate.

However, Article 27 (1) 1 of the Fishing Vessels Act provides that a fishing vessel inspection certificate shall state the type, name, maximum number of passengers on board, limited pressure and the location of load line, etc. of the fishing vessel, and does not delegate the contents to subordinate statutes. Article 64 of the Enforcement Rule of the Fishing Vessels Act, which is subordinate statutes, provides for the entry of a fishing vessel inspection certificate. However, Article 64 of the Enforcement Rule of the Fishing Vessels Act provides only the maximum number of passengers on board, limited voltage, load line location, and necessary navigation conditions for the fishing vessel. Thus, there is no express provision about the gross tonnage.

(4) Article 47 (1) 6 of the Enforcement Rule of the Fishing Vessels Act provides that a person who uses a fishing vessel for navigation or fishing operations without undergoing a fishing vessel inspection shall be punished by a temporary inspection (Article 44 (1) 1 of the Fishing Vessels Act). Article 44 (1) 1 of the Fishing Vessels Act provides that a person who uses a fishing vessel for the purpose of navigation or fishing operations without undergoing a fishing vessel inspection shall be punished by the same type, name, maximum number of passengers on board, restricted voltage, load line location, etc. shall be stated in the fishing vessel inspection certificate under Article 27 (1) 1 of the Fishing Vessels Act (Article 47 (1) 6 of the Fishing Vessels Act) without any delegation by an administrative agency shall be punished by a change in the attached Form 61 of the Enforcement Rule of the Fishing Vessels Act only if it is possible to punish a fishing vessel on the ground that a change in the stated matters is without undergoing a fishing vessel inspection, which violates the predictability of punishment and there is no possibility of arbitrary enforcement of the law.

Therefore, notwithstanding Article 63(1)1(a) of the Enforcement Rule of the Fishing Vessels Act, the gross tonnage cannot be deemed to constitute “matters entered in the fishing vessel inspection certificate under Article 27(1)1 of the Fishing Vessels Act.” Thus, even if the gross tonnage of the instant vessel is changed in violation of the guidelines of the Ministry for Food, Agriculture, Forestry and Fisheries or the Ministry of Oceans and Fisheries, it is separate from whether to impose fines for negligence, thereby punishing the Defendant as a violation of the principle of no punishment without the law.

Ultimately, the court below's decision of not guilty of this part of the facts charged is just, and there is no misconception of facts or misapprehension of legal principles as argued by the prosecutor.

4. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Kim Jong-soo (Presiding Judge)