207Revocation of revocation of revocation of fishery permission

1. A;

2. B

3. C.

[Defendant-Appellant] Plaintiff X

Head of Busan Metropolitan City

Law Firm Doz.

Y, Zin Law Firm

February 28, 2008

April 24, 2008

1. The defendant's disposition of non-permission on the application for a permit to fish an inshore vessel on November 3, 2006 with respect to a vessel listed in attached Form (1) as to the plaintiffs shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On August 19, 194, the plaintiff B acquired the ownership of 29 tons (a) of the Busan Ship's 29 tons (hereinafter referred to as "a") and on October 6 of the same year, the plaintiff B was engaged in the fishery by obtaining a permit for inshore succession fishing from the defendant with respect to subparagraph (a) and was revoked due to the violation of Article 41 of the Fisheries Act on April 25, 1995.

B. While a new fishery permit was suspended due to the cancellation of the above fishery permit, the Plaintiff B transferred No. A to D on June 12, 1998, and again, the Plaintiff A was transferred from D on September 11, 2001 and operated a sub-paragraph (a). On November 16, 2005, the sub-paragraph (a) was sunken from the breakwater located in Busan Southern-dong, Busan, due to natural disaster.

C. On October 18, 2006, Plaintiff A purchased the attached Form Nos. 1(b) (hereinafter referred to as “B”) jointly with Plaintiff B and C on October 18, 2006 and the expiration date of the grace period for permission for fishery business under subparagraph A (a) has elapsed (as to subparagraph (a), the fishery permission was postponed until October 24, 2006 due to the discovery of a violation of the Fisheries Act over about 10 times after the first fishery permission was revoked on April 25, 1995 in the course of the change of the owner), and on October 30, 206 in substitution for Plaintiff B and C, the Defendant filed an application for permission for coastal fishing business under subparagraph (a) on November 3, 2006, on the ground that the Defendant rejected the Plaintiffs’ application for permission for inshore fishing and reporting on fishery business (hereinafter referred to as “Rules”) on November 3, 2006, on the ground that the Defendant violated Article 7(3), 11(2) and 2)(2) of this case.

D. Meanwhile, on November 15, 2006, the plaintiffs submitted a written opinion demanding a review of the disposition of this case to the defendant. Accordingly, the defendant must apply to the plaintiffs on November 28, 2006, and (1) Article 7 (3) of the Rules provides that where a person who acquired the ownership of the permitted fishing vessel intends to obtain a new permit, he shall apply for the permit within 30 days from the date of acquisition of ownership. Thus, since a person who obtained a fishery permit sells a fishing vessel for which he obtained a permit to a third party, the person who obtained the original fishery permit becomes disqualified for the original fishery permit. (2) Article 11 (2) of the Rules provides that if the original fishery permit was revoked due to the violation of the fishery-related Acts and subordinate statutes, the new permit in lieu of the permit for the fishery permit has been suspended, the owner of the fishing vessel for which the first fishery permit was postponed may apply for the fishery permit after the grace period expires, but it is impossible to permit the fishery permit when the vessel is sold to the third party, and (3) the owner of the pertinent fishery permit suspended.

[Basis] Facts without dispute, Gap 1, 2, Gap 3-1, 2, Gap 4, 5, Eul 1 to 5, the purport of the whole pleadings, and the purport of the whole pleadings

2. The legality of disposition.

A. The assertion

(1) The defendant's assertion

(A) In order for the plaintiffs to file an application for permission for fishery permit for subparagraph (a) on the ground of the existing fishery permit for subparagraph (a), the plaintiffs should have jointly acquired the ownership of subparagraph (a). A, while they were solely owned by the plaintiffs A, they were sunken and the plaintiffs did not have jointly acquired the ownership of subparagraph (a). Thus, there is no reason for the plaintiffs to file an application for fishery permit for subparagraph (a) and (b) above. (B) Although it is possible to apply for fishery permit for other fishing vessels when a fishing vessel is sunken due to a natural disaster within the time limit for filing an application for fishery permit, since subparagraph (a) is not sunken within the time limit for filing an application for fishery permit, the plaintiffs

(2) The plaintiffs' assertion

(A) Even if Plaintiff A solely owns a subparagraph (a) for which the fishery permit was postponed due to the destruction of the subparagraph (b) for which Plaintiff A applied for the fishery permit jointly owned by the Plaintiffs, such change in the owner cannot be the ground for limiting the postponed fishery permit.

(B) The Plaintiffs’ application for a fishery permit does not constitute grounds for restrictions on fishery permits under Article 12(2)5 of the Rules.

B. Relevant statutes

Attached Form 2 is as shown in (Omission).

C. Determination

(1) Pursuant to Article 41 of the former Fisheries Act and Article 41 of the Rules (amended by Act No. 8377 of Apr. 11, 2007; hereinafter the same shall apply), since the plaintiff's sinking of a fishery permit does not require the plaintiffs to jointly own subparagraph (a) but whether the above plaintiffs can jointly file an application for the fishery permit with respect to subparagraph (b) acquired as a substitute for the above subparagraph (i.e., health room, Gap 1, 2, Gap 9-1, 2, and Gap 10, respectively, and the following circumstances recognized as a whole comprehensively taking into account the purport of the whole pleadings and the relevant laws and regulations, the vessel's sinking of a vessel can not be deemed a joint owner's right to jointly obtain a permit for the fishery permit. Since Article 4 of the former Fisheries Act provides that the vessel's sinking of a vessel can not be deemed as a substitute for the vessel's fishing permit for each fishing vessel or fishing gear, it is difficult for the plaintiffs to jointly obtain a permit for the fishery permit.

(2) Next, Article 12(2)5 of the Rules provides that a person who acquires the ownership of a fishing vessel that has obtained permission for fisheries, etc. with the fixed number of permission shall not grant permission for fisheries shall not apply in cases where the person applies for a new permission for the fishing vessel other than the relevant fishing vessel. However, the proviso provides that a person may grant permission for fisheries in cases where the relevant fishing vessel is sunken, destroyed or lost due to natural disasters (within 30 days from the expiration date or acquisition date of ownership) during the period of application for permission for fisheries under Article 7(3) (within 30 days from the expiration date or the acquisition date of ownership), which is not included in the provisions of the above proviso, unless it is included in the provisions of the above proviso, a fishery permission is deemed impossible for other fishing vessels than the permitted fishing vessel. Thus, it is difficult to see that the Plaintiffs’ application for fishery permission is accepted.

However, the fishery permit has the nature of a material license and the fixed number of the fishery permit is maintained when the fishery permit is deferred due to the cancellation of the fishery permit. The fishery permit deferment system is to prevent the fishing vessel from using the fishing vessel as a permitted fishing vessel in the event that the fishery permit is revoked. However, it is to grant a new fishery permit in lieu of the cancelled fishery permit after the expiration of the grace period, and a person who is in the grace period for the fishery permit has a right to expect a new fishery permit again after the lapse of the grace period, unless there are special circumstances. However, there is no reasonable ground to limit the above expectation right by distinguishing the fishing vessel from the case where the fishing vessel is sunken within the application period of the above fishery permit. Thus, even if the fishing vessel is sunken within the application period of the fishery permit before the application period of the fishery permit is cancelled, it is reasonable to interpret the aforementioned proviso of Article 12 (2) or the proviso of Article 5 (2) of the Rules as not being applied to the fishing vessel after the sinking of the fishing permit.

(3) Therefore, the instant disposition, which rejected the Plaintiffs’ application for permission of fishery on different premise, should be revoked as it is unlawful.

3. Conclusion

Therefore, the plaintiffs' claims are reasonable, and it is decided as per Disposition by admitting them.

The effects of the presiding judge and judges;

Judges Park Jong-sung

Judges Park Gin-uri