[1] The relationship under Articles 95 subparag. 9 and 75 of the Fisheries Act, which punishs the acts of carrying and transporting marine animals and plants captured and gathered in violation of the Fisheries Act or an order under the above Act, and Articles 30 subparag. 2, 29, and 11 of the Decree on the Protection of Marine Resources, which punishs the acts of capturing and transporting the female of the female of the booms and the female of red strings

[2] The method of applying the penal provision in a case where there is an appearance appears to exist two different statutory provisions for one act and there is room for controversy over the confirmation of the grounds for the punishment

[3] In a case where the act of capturing and transporting female females prohibited from capture is prosecuted for violating the Fisheries Act, the case holding that Article 30 subparagraph 2 of the Decree on the Protection of Marine Resources and Articles 29 and 11 of the Decree on the Protection of Marine Resources shall apply without applying Article 95 subparagraph 9 of the Fisheries Act and Article 75 of the same Act

[1] Articles 95 subparag. 9 and 75 of the Fisheries Act provide that "marine animals and plants captured, gathered or cultivated in violation of the Fisheries Act or the order thereof, and products thereof" shall be comprehensively defined so that the act subject to punishment is too broad and comprehensive to the extent that it can not be easily predicted, and thus, it may be in violation of the principle of clarity in the principle of no punishment without the law because the scope of the act subject to punishment is too broad and comprehensive. On the other hand, Article 3(1) of the Fisheries Act on the scope of application of the Ordinance on the Protection of Marine Resources provides that "the matters concerning the establishment of total catch quota under Article 52 of the Fisheries Act, matters concerning the establishment of total catch quota under Article 54-2, and matters concerning the protection of fishery resources under Article 79 shall be governed by the Ordinance on the Protection of Marine Resources except that provided for in the Fisheries Act and the Enforcement Decree of the Fisheries Act." Article 97 of the Fisheries Act provides that the act of catching, carrying, and transporting females prohibited to the extent that it constitutes a provision on the Fisheries Act.

[2] If there seems to exist two separate statutory provisions for one act, and there is room for controversy over the confirmation of the grounds for the punishment, it is reasonable to view that the statutory punishment less favorable to the defendant is preferentially applied in accordance with the basic ideology of the criminal law.

[3] In a case where the act of capturing and transporting female females prohibited from capture is prosecuted for violating the Fisheries Act, the case holding that Article 30 subparag. 2, Article 29, and Article 11 of the Decree on the Protection of Fishery Resources shall apply without applying Article 95 subparag. 9 and Article 75 of the Fisheries Act and without changing the indictment

[1] Article 75, Article 95 subparagraph 9 of the Fisheries Act, Article 11, Article 29, and Article 30 subparagraph 2 of the Decree on the Protection of Marine Resources / [2] Article 12 (1) of the Constitution / [3] Article 75, Article 95 subparagraph 9 of the Fisheries Act, Article 11, Article 29, and Article 30 subparagraph 2 of the Decree on the Protection of Marine Resources

Defendant

Defendant

Abnormal punishment

Attorney Kim Jae-hoon

Daegu District Court Decision 2005Kadan992 Decided February 7, 2006

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 5,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted by 30,000 won into one day.

Provided, That the fractional amount shall be one day.

The period of 74 days of detention before the pronouncement of the judgment below shall be included in the period of detention in the workhouse.

Seized (name of fishing vessel omitted) The fishing log (No. 2) shall be confiscated.

1. Summary of grounds for appeal;

Considering the various sentencing conditions, the sentence imposed by the court below (one year of imprisonment) is too unreasonable, considering the following factors: (a) the period of sentence imposed by the court below is too unreasonable, considering the following factors: (b) the wife suffering from heart diseases and the family's livelihood, which led to the instant crime for the sake of family's livelihood; and (c) the depth of his mistake is divided.

2. Determination:

The grounds for appeal by the defendant are examined ex officio prior to the judgment.

A. Summary of the facts charged in this case and the judgment of the court below

The summary of the facts charged of this case is that the defendant is the captain and owner of the non-indicted 1, 2, and 3 who are the crew of the non-indicted 1, 2, and 3 who are the non-indicted 1, 3 who are the captain of the non-indicted 1, 2, and the non-indicted 1, 3 who are the crew of the non-indicted 1, 3, around October 2, 2005, captured approximately 1,980 mar of large scale using the ventilation gear at the 15-manbbbbbbbb from the port of the Gyeongbuk-gu, Chungcheongnam-gu, and entered the port of port at around 20:50 on the same day in accordance with the size, and possessed, transported, and transported the large scale female of large scale captured in violation of the Fisheries Act, and from that time until November 25, 200 of the same year, the court below convicted the defendant by applying Article 95 subparagraph 9 and Article 75 of the Fisheries Act.

(b) Judgment of this Court on applicable provisions of law;

(1) The Fisheries Act and the Decree on the Protection of Fishery Resources

Article 75 of the Fisheries Act, applied by the court below, provides that "any person shall not possess, transport, dispose of, process or sell marine animals and plants captured, gathered or cultivated in violation of this Act or any order issued under this Act and products thereof, and Article 95 subparagraph 9 of the same Act, which is a penal provision, provides that "any person who violates the provisions of Article 75, shall be punished by imprisonment for not more than two years or by a fine not exceeding five million won."

Meanwhile, Article 52 (1) (Article 52 (2) and (3) of the Fisheries Act (Article 52 (1) (Article 52 (1) (Article 52 (1) (Article 52 (1) (Article 52 (2) and (3) (Article 79 (1) (Article 52 (2) of the same Act shall apply mutatis mutandis to cases where Article 52 (2) and (3) of the same Act are violated), and Article 11 of the Fishery Resources Protection Decree enacted upon delegation of the above Article 52 (1) (Article 52 (1) of the same Act (Article 52 (1) of the same Act shall not be captured. Article 29 of the same Act provides that "the catch or its products captured and gathered in violation of the provisions of Articles 9 through 11-2 shall not possess, transport, process, or sell it." Article 79 (2) of the same Act provides that "any person who violates Article 30 (2) of the same Act shall be punished by a fine not exceeding 900."

(2) Legal provisions applicable to the crime of this case

(A) Article 95 subparag. 9 and Article 75 subparag. 9 of the Fisheries Act, which is applied by the court below to the act of carrying and transporting females captured in violation of the provisions of Article 11 of the Decree on the Protection of Fishery Resources, such as the crime of this case, is subject to a separate penal provision. However, as seen earlier, Article 30 subparag. 2, Article 29, and Article 11 of the Decree on the Protection of Fishery Resources have separate penal provisions, and Article 30 subparag. 2, Article 29, and Article 11 of the Decree on the Protection of Fishery Resources should be a penal provision for the above act. Therefore, it is problematic whether the two penal provisions should be applied to the

(B) First, Article 95 Subparag. 9 and Article 75 of the Fisheries Act provide that “marine animals and plants captured, gathered, or cultivated in violation of the Fisheries Act or the order thereunder and their products” comprehensively, as seen above, the provisions of this Act alone are too broad and comprehensive to the extent that the act subject to punishment is unlikely to be easily predicted, and thus, it may violate the principle of clarity in the principle of no punishment without the law.

(C) On the other hand, Article 3(1) of the Fisheries Act provides that "the Ordinance on the Protection of Fishery Resources shall be governed by the Ordinance on the Protection of Fishery Resources except as otherwise provided for in the Fisheries Act and the Enforcement Decree of the Fisheries Act with respect to matters concerning the control of fisheries, hygiene control, distribution order and other coordination of fisheries under Article 52 of the Fisheries Act, matters concerning the establishment of total catch quota under Article 54-2 and matters concerning the protection of resources under Article 79," and there is room to regard that the act of capturing, carrying, and transporting female females prohibited from capture as they fall under the case where there are provisions of the Fisheries Act, and thus excluded from the scope of the application of the Ordinance on the Protection of Fishery Resources. However, since Article 52 and Article 79 of the Fisheries Act, which are the basic provisions for the delegated legislation on the coordination of fisheries and the protection of resources, Article 30 subparag. 2, Article 29, and Article 11 of the Fisheries Act, which are the basis provisions for the delegation of the Fisheries Act, clearly stipulate the types and scope of punishment.

(D) Furthermore, if there seems to exist two separate statutory provisions for one act, and there is room for controversy over the determination of the grounds for the punishment, it is reasonable to view that the statutory penalty that is less favorable to the defendant is preferentially applied in accordance with the basic ideology of criminal law.

(3) Thus, in the case where the facts charged are identical as in this case, the court may apply the law ex officio without being able to apply the applicable provisions of the indictment written by the prosecutor. Despite the application of Article 30 subparag. 2, Article 29, and Article 11 of the Decree on the Protection of Marine Resources, the court below erred by misapprehending the legal principles on the Fisheries Act and the Decree on the Protection of Marine Resources.

3. Conclusion

Therefore, the judgment of the court below is reversed ex officio in accordance with Article 364(2) of the Criminal Procedure Act, and it is again decided as follows.

The Defendant is the captain and owner of a vessel (the name of a fishing vessel omitted) in the south-gu, the Nam-gu, the Chungcheongnam-gu, the U.S., and in collusion with Nonindicted 1, 2, and 3, the crew;

On October 2, 2005, at the sea of about 15 mam from the 15-day coast guard room, he captured approximately approximately 1,980 mars of large-scale rooms using air-percussion gear, and entered a port of port at around 20:50 on the same day in accordance with size, and carried and transported large-scale females captured in violation of the Fisheries Act, and from that time until November 25 of the same year, he carried and transported large-scale females captured in violation of the Fisheries Act more than 30 times in total, such as in the list of crimes in the annexed sheet.

Since the corresponding column of the judgment of the court below is the same as the corresponding column of the judgment below, it shall be quoted by Article 369 of the Criminal Procedure Act

1. Relevant Article of the Act and the choice of punishment for the crime;

inclusive, Article 30 subparag. 2, Article 29, Article 11 of the Decree on the Protection of Marine Resources, Article 30 of the Criminal Act

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. The inclusion of days of pre-trial detention in the judgment below

Article 57 of the Criminal Act

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

The defendant committed the crime of this case by capturing, possessing, and transporting the female 92,730 Mabs, a total of 30 months over a total of 30 months. In light of the period and frequency of the above crime, and the quantity of catches, even considering all favorable sentencing factors, such as the defendant alleged in the above grounds for appeal, it is necessary to punish the defendant as the highest penalty among the statutory penalty prescribed in Article 30 of the above Decree on the Protection of Fishery Resources.

It is so decided as per Disposition for the above reasons.

[Separate] The omission of a list of crimes

Justices Kim Tae-tae (Presiding Justice)