Whether Article 95 subparag. 8 and Article 73 of the former Fisheries Act, which delegated acts subject to punishment to Presidential Decrees and subordinate statutes, and whether Article 64 subparag. 1 and Article 17 of the former Fishery Resources Management Act violates the principle of prohibition of comprehensive delegation or the principle of no punishment without law (negative)

Article 73 of the former Fisheries Act (wholly amended by Act No. 9626, Apr. 2, 200; hereinafter referred to as the "former Fisheries Act") provides for punishment in Article 95 of the same Act with regard to acts violating this Act or an order under this Act, Article 53 (1) 8 of the same Act, and Article 17 of the former Fisheries Act (amended by Act No. 10272, Apr. 15, 2010; hereinafter the same) provides for the specific scope of punishment under Article 64 of the former Fisheries Act, and Article 2 of the former Enforcement Decree of the Fisheries Act (amended by Act No. 962, Apr. 2, 200; hereinafter referred to as the "former Fisheries Act"). Article 2 of the same Act provides for the specific scope of punishment under Article 10 of the same Act, which shall be amended by Act No. 1027, Apr. 15, 2010; Article 615 of the former Fisheries Act provides that the former Fisheries Act shall be delegated to regulate and amended by Act.

Articles 12(1), 75, and 95 of the Constitution of the Republic of Korea; Article 1(1) of the Criminal Act; Article 53(1)8 (see current Article 61(1)5 and (2) of the former Fisheries Act (wholly amended by Act No. 9626, Apr. 22, 2009); Article 73 (see current Article 98 subparag. 8), Article 95 subparag. 8 (see current Article 98 subparag. 8), Article 61(1)5 of the former Fisheries Act (Amended by Act No. 10272, Apr. 15, 2010); Article 41 of the former Enforcement Decree of the Fisheries Act (wholly amended by Presidential Decree No. 22127, Apr. 20, 2010); Article 201 of the former Enforcement Decree of the Fishery Resources Management Act (Amended by Act No. 22151, Apr. 16, 2010; Presidential Decree No. 22101, Apr. 28, 2019)

Supreme Court en banc Decision 2002Do2998 Decided November 26, 2002 (Gong2003Sang, 276) en banc Decision 94Hun-Ma213 Decided February 29, 1996 (Hun-Gong14, 226)

Defendant 1 and two others

Defendants

Law Firm Snum Law, Attorney Matak-in

Jeju District Court Decision 2012No205 decided December 13, 2012

All appeals are dismissed.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. In fact, it is impossible to stipulate all laws and regulations related to criminal punishment by law without exception due to complex and diversification of social phenomenon, the limit of professional and technical ability of the National Assembly and the limit of time adaptation ability, and it is not in fact impossible to stipulate them by law within a formal meaning without exception. Thus, the delegation legislation is allowed under the premise that the delegation legislation is clearly stipulated in the aspect of elements of punishment, in particular, in the case where there is an urgent need or an inevitable circumstance in which it is impossible to determine it in advance by law, and in the case of punishment, the delegation legislation is not in violation of the principle of no punishment without law (see Supreme Court Decision 2002Do2998 delivered on November 26, 2002).

A delegation order can be granted when there exists an individual delegation that sets a specific scope in the law or upper level order. Here, the specific scope of delegation differs depending on the type and character of the subject matter to be regulated, and thus, uniform standards cannot be set. However, at least, since the basic matters of the contents and scope to be stipulated in the delegation order are specifically stipulated in the relevant law or upper level order, any person can predict the outline of the contents to be stipulated in the delegation order from the relevant law or upper level order. In this case, the predictability of the delegation clause should not be determined with only one of the pertinent delegation clause, but rather with the overall structure, purpose, and purpose of the relevant delegation clause, the relevant delegation clause must be determined with an organic and systematic comprehensive determination of the relevant delegation clause, the form and content of the relevant delegation clause, and the relevant laws and regulations, depending on the nature of each regulation subject (see Supreme Court Decisions 201Du5651, Aug. 23, 2002; 2003Du7606, Jul. 22, 2004).

In addition, re-elections without any provision of the matters delegated by the Act are not allowed because it goes against the legal principles of prohibition of re-Delegation of blank, and it brings about changes in the contents of the delegation of blank power. However, if the delegated matters are determined by the Presidential Decree and the specific matters of the delegated matters are re-entrusted to the subordinate statutes, re-elections shall be allowed (see Supreme Court Decision 2004Du14793, Apr. 14, 2006, etc.).

In addition, the so-called administrative rules, which are issued by a superior administrative agency to a subordinate administrative agency, are generally effective only within the administrative organization and do not have external binding force. However, if a provision of a law does not specify the procedure or method of exercising its authority while granting a specific administrative agency the authority to determine the specific matters of the law, and if the delegated administrative agency specifically determines matters that are the contents of the law in the form of administrative rules, it shall not be the general effect of administrative rules, but shall have the function to supplement the contents of the law by the validity of the provisions of the law that grant an administrative agency the authority to supplement the specific matters of the law, so such administrative rules and regulations shall have the function to supplement the contents of the law, so long as they do not go beyond the delegated limit of the law, they shall have the effect of external binding legal order (see Supreme Court Decision 86Nu484 delivered on September 29, 198, etc.).

B. (1) The lower court found the Defendants guilty of all of the charges of this case by applying Articles 98(1), 95 Subparag. 8, and 73 of the former Fisheries Act (wholly amended by Act No. 9626, Apr. 22, 2009; hereinafter “former Fisheries Act”) and Articles 69, 64 Subparag. 1, and 17 of the former Fishery Resources Management Act (amended by Act No. 10272, Apr. 15, 2010; hereinafter the same) to the charges of this case where the Defendants conspired to purchase, possess, and store the stones captured by fishermen in violation of the Fisheries Act.

(2) The gist of this part of the grounds of appeal is that the punishment provision of this case does not directly stipulate the specific contents of the act subject to punishment, but delegated and re-entrusted to Presidential Decree, etc., and it is in violation of the principle of prohibition of comprehensive delegation legislation or the principle of no punishment without law.

With respect to the acts indicated in the facts charged in this case, Article 73 of the former Fisheries Act provides for a penal provision under Article 95 of the same Act concerning the acts violating this Act or an order under this Act, and Article 53 (1) 8 of the same Act concerning the contents of the order. Meanwhile, Article 17 of the former Fishery Resources Management Act provides for a penal provision under Article 64 of the same Act concerning the acts violating this Act or an order under the Fisheries Act, while Article 61 (1) 5 of the former Fisheries Act concerning the contents of the order was wholly amended by Act No. 9626 of Apr. 22, 2009 and partly amended by Act No. 10272 of Apr. 15, 2010 (hereinafter “former Fisheries Act”).

However, Article 53 (1) 8 of the previous Fisheries Act and Article 61 (1) 5 of the previous Fisheries Act clearly stipulate that the purpose of delegation is "fisheries control, sanitary control, distribution order or other coordination," and their specific contents and scope are specified, and the Fisheries Act which regulates continuously changing marine ecosystems requires more carbonity than other Acts, and requires more specific provisions of Article 50 of the previous Fisheries Act (amended by Presidential Decree No. 2128, Apr. 20, 201; Presidential Decree No. 2010, Apr. 1, 2010). Article 29 of the previous Fisheries Act (amended by Presidential Decree No. 2160, Apr. 20, 2010; Presidential Decree No. 21358, Apr. 1, 2010).

2. Regarding ground of appeal No. 2

In order to determine whether there is a possibility of expectation of lawful act against the defendant, it is necessary to determine whether there is a possibility of expectation from the perspective of the average person instead of the actor under specific circumstances at the time of the act (see Supreme Court Decision 2005Do10101, Oct. 23, 2008, etc.).

According to the above notification on prohibition of capture, the government can capture the future for the purpose of scientific research and education and viewing necessary for national sentiments. According to the evidence duly adopted by the court below, it can be known that the country where the capture of the future is not prohibited in order to prepare the future for the performance. Thus, this part of the ground of appeal to the effect that there was no possibility of expectation of lawful act because the future of this case captured domestically due to the lack of relevant legislation would be used for the public performance, and thus, this part of the ground of appeal cannot be accepted.

3. Regarding ground of appeal No. 3

The court below is just in finding the defendant guilty by applying the previous Fisheries Act, and there is no error in the misapprehension of legal principles as to the application of statutes as alleged in the grounds of appeal.

4. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)