206Nu1745 Revocation of revocation of revocation of the acceptance of fishery report

As shown in the separate list of plaintiffs

[Judgment of the court below]

Attorney Han Han-ju

Mineyang Market

Law Firm Locom, Counsel for the defendant-appellant

Attorney Yang Dong-chul

Gwangju District Court Decision 2005Guhap2919 Decided June 22, 2006

June 28, 2007

July 26, 2007

1. Revocation of a judgment of the first instance;

2. All plaintiffs' claims are dismissed.

3. The costs of the lawsuit are assessed against the Plaintiffs.

1. Purport of claim

Of the plaintiffs listed in the separate sheet of the plaintiffs, the defendant against the plaintiffs listed in the separate sheet of April 14, 2005 as to the plaintiffs listed in the separate sheet of June 3, 2005 as to the plaintiffs listed in the separate sheet of June 3, 2005 as to the plaintiffs listed in the separate sheet of June 10, 2005 as to each of the plaintiffs listed in the separate sheet of June 10, 2005 as to refusal of acceptance of report on fisheries

The same shall apply to the order.

1. Details of the disposition;

A. On April 12, 2005, the plaintiffs listed in the list of [Attachment 1] reported to the defendant on the last hand pursuant to Article 44(1) of the Fisheries Act in order to make the first hand hand hand-on fishery business at the sea level of the Mayang-si. However, on April 14, 2005, the defendant refused to accept the first hand-on fishery business report on the ground that all waters subject to the first hand-on fishery business were designated as designated ports (trade ports) or regional industrial complexes under the provisions of Article 44 of the Harbor Act and Article 12 of the Industrial Sites and Development Act. The first hand-on fishery business report on April 14, 2005 was limited under the provisions of Article 44 of the Harbor Act and Article 12 of the Industrial Sites and Development Act. The first hand-on fishery business report on the ground that there was no reported fish business area under Article 44 of the Fisheries Act.

B. Around May 17, 2005, the plaintiffs listed in the annexed list (2) as stated in the annexed list (3) corrected the area of operation around June 8, 2005 to the tide area in the Do-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-si-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-si (hereinafter referred to as the "fishing-ri-ri-si) to the next list of the plaintiffs, who filed a report on fisheries on June 17, 2005, respectively, on June 10, 2005.

[Ground of recognition] Facts without dispute, Gap 1 and 3 evidence 1, 2, 3, Gap 4-2, 3, Gap 9-1 to 153, and the purport of the whole pleadings

2. Determination on this safety defense

The defendant asserts that the revocation claim against the above disposition filed on August 8, 2005 is unlawful, because the notice was sent on April 14, 2005 as to the disposition rejecting the first hand fishery report on April 14, 2005, and reached the relevant plaintiffs around that time, the 90 days thereafter was far more than 90 days later than the filing date.

Therefore, the defendant is a person who has sent the above notice by ordinary mail, not by registered mail. The fact that the notice was sent by ordinary mail is insufficient to recognize that it has reached it within a considerable period of time (Supreme Court Decision 92Da2530 delivered on May 11, 1993), and there is no evidence to support that the above notice was sent from August 8, 2005 to the relevant plaintiffs before 90 days. Thus, the defendant's above assertion is rejected.

3. Whether the instant disposition is lawful

A. The plaintiffs' assertion

① Article 44 of the Harbor Act and Article 12 of the Industrial Sites and Development Act do not impose any restrictions on the first hand fishing business. Despite the Defendant’s absence of compensation for the first hand fishing right by the Plaintiffs, the Defendant asserts that the Defendant’s act of fishing has been restricted pursuant to the provisions of Article 44 of the Harbor Act and Article 12 of the Industrial Sites and Development Act, and that the Defendant’s disposition on April 14, 2005, on the ground that the first hand fishing compensation due to the development of the second hand fishing and the first hand fishing and the first hand fishing have been completed with respect to the waters subject to the first hand fishing, was unlawful. ② The instant disposition on the first hand on the ground that the Defendant’s disposal on April 14, 2005 was unlawful, and ② the instant fishing area constitutes the sea area to which the Fisheries Act applies, which constitutes the sea area to which the Defendant applied, the first hand fishing and the first hand fishing of the Plaintiff’s 20,000 first hand, which had been designated by the Governor.

(b) Related statutes;

Fisheries Act

Article 2 (Definitions) The definitions of terms used in this Act shall be as follows:

9. The term “seashores” means an area between the water level line at full tide and the sea-side boundary line of land registered on the public cadastral book. Article 3 (Waters to which this Act applies) This Act shall apply to the sea, beaches and sea waters artificially developed for the purpose of fishery;

Article 44 (Reported Fishery)

(1) Any person who intends to run a fishery business prescribed by Presidential Decree, other than the fishery business under Article 8, 41 or 42, shall report to the head of a Si/Gun/autonomous Gu on each fishing vessel, fishing gear or facility, as prescribed by Ordinance of the Ministry of Oceans and Fisheries.

Article 98 (Fine for Negligence)

(1) A person who falls under any of the following subparagraphs shall be punished by a fine for negligence not exceeding five million won:

Enforcement Decree of the Fisheries Act

Article 33 (Reported Fishery Business)

(1) Types of reported fishery business under Article 44 (1) of the Act shall be as follows:

1. Man-man fishery business: Business of catching and gathering marine animals and plants by using diversing, gallling, tidal frameworks, renals, etc. in his/her hand;

Inland Water Fisheries

Article 2 (Definitions) The definitions of terms used in this Act shall be as follows:

1. The term "inland waters" means the currents or water surface of rivers, dams, lakes, reservoirs, and other artificially created fresh water or brackish water;

Article 6 (Licensed Fishery Business)

(1) A person who intends to run a fishery business falling under any of the following subparagraphs within inland waters shall obtain a license from the head of a Si/Gun/Gu, as prescribed by Presidential Decree:

1. Fish farming: Fisheries cultivating marine animals and plants by dividing a specified water surface and providing the facilities necessary for the relevant fishery or by other means;

2. Fixed net fishery business: Business of catching marine animals by dividing a certain area of waters and specifying a fishing gear; 3. Business of catching and gathering marine animals and plants by forming and cooking fishery resources in order to promote the common interests of local residents with an exclusive use of certain waters;

4. Fishing and gathering fisheries: Fisheries creating and collecting fish in specified waters designated by the Minister of Maritime Affairs and Fisheries. Article 9 (Licensed Fishery)

(1) A person who intends to run a fishery business falling under any of the following subparagraphs within inland waters shall obtain permission from the head of a Si/Gun/Gu, as prescribed by Presidential Decree:

1. Self-net fishing: The fishery of catching marine animals using a self-net;

2. Seed gathering fisheries: Fisheries capturing the seeds and seedlings of marine animals and plants for the purpose of selling them to farmers engaged in fish farming or farming, etc.;

3. Gambling fishery: The fishery of catching marine animals by using a line fishing.

4. Shellfish gathering fishery: The fishery of gathering or capturing shellfishes and other sedentary animals using sea nets or instruments;

5. Fishing business: The business of operating a fishing place by dividing a certain water surface or installing other facilities; 6. The business of catching marine animals using wing nets;

7. Set-net fishery: The fishery of catching marine animals by installing various nets;

Article 11 (Fisheries Subject to Reporting)

(1) Any person who intends to run a fishery business, other than the fishery business under Articles 6 and 9, within inland waters, which is prescribed by Presidential Decree, shall report to the head of Si/Gun/Gu as prescribed by Presidential Decree. Except as otherwise provided for in this Act (Application Mutatis Mutandis of the Fisheries Act)

Article 9 (Fisheries Subject to Reporting)

(1) The term "fishing prescribed by Presidential Decree" in Article 11 (1) of the Act means the following:

2. Fishery business: The business of catching marine animals by setting up fish sprinks in the river;

3. Dud fishery: fishery which captures aquatic animals using a candy;

4. Outline fishing: The fishery of catching marine animals by open fishing;

5. Land cultivating fisheries: Fisheries cultivating marine animals or plants or producing seedlings using specific facilities on land;

6. Business of cultivation in ornamental fish: Business of cultivating ornamental fish or producing seedlings by carrying out certain facilities (limited to those, the area of which is not less than 16.5 square meters, of a water tank) indoors;

River Act

Article 2 (Definitions, etc. of Terms)

(1) The definitions of terms used in this Act shall be as follows:

1. The term "river" means the system of flowing water (hereinafter referred to as "river system") closely related to public interests, which includes the river area of the river system and river appurtenances;

(2) Rivers shall be classified as follows:

1. National rivers: Rivers that are important for the preservation of national land or national economy and are managed by the State; 2. Local first-class rivers: Rivers closely related to the public interest of local areas and managed by the Special Metropolitan City Mayor, Metropolitan City Mayor, or Do Governor (hereinafter referred to as the "Mayor/Do Governor");

3. Local second-class rivers: Rivers that flow into or out of national rivers or local first-class rivers and are managed by the Mayor/Do Governor equivalent to national rivers or local first-class rivers.

Article 7 (Designation of Rivers)

(1) The names and sections of national rivers and local first-class rivers shall be prescribed by Presidential Decree.

Harbor Act

Article 44 (Prohibited Acts) No person shall commit any of the following acts with respect to a harbor without justifiable cause:

3. Other acts prescribed by the Presidential Decree as likely to hinder the preservation or use of the harbor.

The term "act that is prescribed by the Presidential Decree as being feared to impede the preservation or use of harbors" in subparagraph 3 of Article 44 of the Act means any act falling under any of the following subparagraphs, which is performed within a harbor zone:

1. Collecting earth, rocks or gravel or collecting and cultivating fishery products without justifiable grounds;

(c) Facts of recognition;

(1) On July 28, 1935, Jeonnam-do announced No. 170 of Jeonyang-do as the starting point of "the 000 Domyang River", which was the closing point of Jeonyang-do, designated "the 30do west Sea from Namyang-do, the closing point" as the river section for the 2nd grade river, and thereafter, on December 27, 2003, Jeonyang-do announced No. 2003-453 of Jeonyang-do as the first west coast of the 000 Sari-ri, the closing point was changed to "the first west coast of the branch line No. 000."

(2) The instant operational area falls under the river section of the Mineyangcheon but is marked as “sea” or “sea” on the cadastral record, and is not included in the harbor area of the optical port.

(3) The sea level at the eyang-si was designated as a designated port (trade port) on December 5, 1986. [Grounds for recognition] Gap evidence 11, Gap evidence 18-2, Gap evidence 22-1, Eul evidence 22-1, 2, Eul evidence 1, 2-2, and the purport of the whole pleadings.

D. Determination

(1) As to the disposition dated April 14, 2005

Article 44 subparag. 3 of the Harbor Act and Article 31 subparag. 1 of the Enforcement Decree of the same Act prohibit the act of gathering and transplanting fishery products in a harbor. Since the plaintiffs listed in the annexed Table No. 1 are seen above that the surface of the sea level in the lightyang city that applied for the formation of a fishing zone on April 8, 2005 was designated as a designated port (trade port), the defendant's disposition on April 14, 2005 should be lawful.

(2) As to each disposition dated June 3, 2005 and June 10, 2005

Article 3 of the Fisheries Act provides that "this Act shall apply to the sea, the seaside and the sea surface of land artificially created for the purpose of the fishery", and Article 2 subparagraph 9 of the same Act provides that "the seaside means the space between the land registered in the cadastral record from the high-water line", and Articles 2 and 5 of the Cadastral Act classify the river into the types of land to be registered in the cadastral record, and Article 7 of the River Act prescribes that the head of the related agency shall designate and announce the river area.

In addition, Article 2 of the Inland Water Fisheries Act provides that "inland waters refer to rivers, dams, lakes, marshes, reservoirs, and other artificially created fresh water or raid water, and Article 22 of the same Act provides that, except as provided in the Inland Water Fisheries Act, the relevant provisions of the Fisheries Act shall apply mutatis mutandis. Article 2 of the Act on the Management of Water-Sharing Waters separates public waters into sea beaches and private waters, and Article 2 of the Water Leisure Safety Act separates sea water and inland water.

In light of the contents and the system of these related regulations, the Inland Water Fisheries Act is related to the Fisheries Act, so that the area designated as a river area under the River Act is a land on the public land register under the Cadastral Act and the Inland Water Fisheries Act is applied first and the Fisheries Act is excluded.

If the Fisheries Act can only be applied to the business of gathering shellfish under the Inland Water Fisheries Act without permission if it is possible to do so for the business of gathering shellfish in a general river area which is not the balance station where fresh water and seawater crosss, compared with those where it is possible to do so without permission under the Inland Water Fisheries Act. In addition, in the case of a license, permit, and report for inland fishery in accordance with the provisions of Article 12 of the Inland Water Fisheries Act, it is necessary to consult with the water surface manager in advance at the time of permission or report, but in the case of the application of the Fisheries Act to the waterside area designated as a river, it is difficult to promote the improvement plan or water control plan of the river, etc. established by the water surface management agency without consultation with the water surface manager at the time of permission or report, and in fact, if the Fisheries Act is applied to the area where seawater reaches the water surface of the river, it is difficult to prevent the application of the Inland Water Fisheries Act and the Fisheries Act from being applied to the area where the water surface of the river reaches the water surface.

Therefore, the defendant's refusal to accept a fishery report under Article 44 of the Fisheries Act on June 3, 2005 and June 10, 2005 on the instant fishing zone designated as a local second-class river area shall be deemed lawful, and even if the defendant had accepted a fishery report on the opposite part of the instant fishing zone or on the inland waters under the downstream of the said area, the plaintiffs cannot demand equal treatment against the defendant. Thus, it is difficult to view that the above disposition by the defendant is contrary to the principle of trust protection or the principle of equality.

4. Conclusion

Therefore, the plaintiffs' claim of this case shall be dismissed due to the lack of reason, and since the decision of the court of first instance is unfair with different conclusions, it shall be revoked and all of the plaintiffs' claims shall be dismissed. It is so decided as per Disposition.

Kim Jong-chul (Presiding Judge)

Dried Dried Cases

Kim Dok Kim