In a case where a mid-sea clock fishing vessel permitted to fish in the East Sea Zone, which is subject to the prohibition of installation of a sloping channel, etc., installed a sloping channel, etc. and operated a fishing operation in the manner of operating it in the stern, using it, whether it constitutes a violation of the restrictions and conditions of disposition under the Fisheries Act and a violation of the fishery resources management Act under Articles 49(1) and 34(1)8 of the Fisheries Act (affirmative) / Whether Article 10(1) [Attachment 11] [Attachment 11] of the former Enforcement Decree of the Fishery Resources Management Act deviates from the scope of delegation by the mother law or is null and void in violation of the principle of proportionality or the principle of equality (negative)

Article 13 [Attachment 8] Paragraph (1) Item (b) (hereinafter “Enforcement Rule Clause”) of the former Rule on Permission for and Report on Fisheries (amended by Ordinance of the Ministry of Oceans and Fisheries No. 1 of March 24, 2013) prohibits the installation of slope paths or similar facilities (hereinafter “unsway route, etc.”) to attract fish into the stern side of fishing vessels in the East Sea Zone. The purpose of the Enforcement Rule is to prevent disputes between the persons engaged in the East Sea Sea Line fishing and those engaged in fish fishing, and to prevent mass capture of fish farms in the East Sea Line. Nevertheless, it is difficult to take into account the circumstances that the provisions of the Enforcement Rule clause prohibit the installation of a vessel in the East Sea Zone from using a slope for the purpose of regulating the operation of the vessel, such as the installation of a vessel slope, etc. without directly prohibiting the operation of a vessel in the East Sea Zone, and to prevent the installation of a vessel in the East Sea Zone from being used for any other purpose of the operation of the vessel.

If such circumstances are examined, Article 34(1)8, Article 49(1) of the Fisheries Act, Article 23(1) and (2) of the former Fishery Resources Management Act (amended by Act No. 11566, Dec. 18, 2012; hereinafter the same shall apply), Article 10(1) [Attachment 11] of the former Enforcement Decree of the Fishery Resources Management Act (amended by Presidential Decree No. 2445, Mar. 23, 2013); and Article 43(7)(b) of the former Enforcement Decree of the Fisheries Act (amended by Presidential Decree No. 9 of the Fishery Resources Management Act (amended by Presidential Decree No. 2010, Mar. 23, 2013; hereinafter “the former Enforcement Decree”). Furthermore, if a fishing vessel violates the conditions of fishing permit under Article 43(1) of the Fishery Resources Management Act, such as a fishing vessel’s installation of a fishing net under the same Act, such as a sloping system, it is prohibited under the Fisheries Act.

In addition, even if such interpretation is made as above, insofar as the term “use of fishing gear” is included in the matters delegated to this Presidential Decree under Article 23(2) of the former Fishery Resources Management Act, the provision of the Enforcement Decree shall not deviate from the scope of delegation by the mother law or be null and void in violation

Articles 11(1) and 75 of the Constitution of the Republic of Korea; Article 43(1) of the former Fisheries Act (Amended by Act No. 11690, Mar. 23, 2013); Articles 34(1)8, 49(1), and 91 of the Fisheries Act; Article 23(1)(2) and (2) of the former Fishery Resources Management Act (Amended by Act No. 11566, Dec. 18, 2012); Article 65 of the former Enforcement Decree of the Fishery Resources Management Act (Amended by Presidential Decree No. 2455, Mar. 23, 2013); Article 10(1) [Attachment Table 11] (b) of the former Enforcement Decree of the Fishery Resources Management Act (Amended by Act No. 24590, Mar. 23, 2013); Article 34(1)8 of the former Rules on Permission for and Reporting for Fisheries (Amended by Ordinance of the Ministry of Oceans and Fisheries)

Plaintiff (Law Firm Barun, Attorneys Gangwon-hun et al., Counsel for the plaintiff-appellant)

The Gangwon-do Governor

Seoul High Court (Chuncheon) Decision 2014Nu835 decided January 14, 2015

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 2

A. Articles 49(1) and 34(1)8 of the Fisheries Act provide that “Where a holder of fishery right violates this Act, the Fishing Ground Management Act or the Fishery Resources Management Act, or orders, dispositions, restrictions, or conditions under this Act, the Fishing Ground Management Act or the Fishery Resources Management Act, or violates orders, dispositions, restrictions, or conditions under this Act, the Fishing Ground Management Act, or the Fishery Resources Management Act” as one of the grounds for restricting or suspending permitted fisheries

Article 23 of the former Fishery Resources Management Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter the same) provides that, if deemed necessary for the propagation and protection of fishery resources, the Minister for Food, Agriculture, Forestry and Fisheries may restrict the scale, form, quantity, method of use, etc. of fishing gear by type of fishery business (Paragraph 1), and matters necessary for such restriction, etc. shall be prescribed by Presidential Decree (Paragraph 2). Article 10(1) [Attachment Table 11] of the former Enforcement Decree of the Fishery Resources Management Act (amended by Presidential Decree No. 24455, Mar. 23, 2013; hereinafter referred to as “the Enforcement Decree of this case”). Article 23 of the former Fishery Resources Management Act (hereinafter referred to as “the former”). Article 10(1) [Attachment Table 11] of the former Enforcement Decree of the Fishery Resources Management Act (hereinafter referred to as “the former Enforcement Decree of this case”) provides for the fishing method of the East Sea and its own fishing gear in the direction of the front sea, ①.

In addition, Article 43(1)(b) of the former Fisheries Act (amended by Act No. 11690, Mar. 23, 2013) provides that an administrative authority shall impose restrictions or conditions on fishing gear, fishing method, etc. by type of fishery business prescribed by Ordinance of the Ministry for Food, Agriculture, Forestry and Fisheries when granting a fishery permit pursuant to Article 41. As such, Article 13 [Attachment Table 8](1)(b) of the former Rules on the Permission, Report, etc. of Fisheries (amended by Ordinance of the Ministry of Oceans and Fisheries No. 1, Mar. 24, 2013) of the former Rules on the Permission, etc. of Fisheries (amended by Ordinance of the Ministry of Oceans and Fisheries No. 11690, Mar. 23, 2013) provides that a fishing vessel granted a license to fish trawls in the East Sea shall not substitute or build the relevant fishing vessel and install facilities similar thereto (hereinafter referred to as “unclaimed fishing vessel, etc.”).

B. According to the above provision of the Enforcement Decree of the instant case, the East Sea Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime

Meanwhile, the instant provision only provides for the prohibition of installation of a slope, etc. on the grounds of the conditions of permission for a fish tower in the East Sea Zone, but does not provide for the restriction on the operation of vessels in the East Sea Zone itself, such as the U.S. P. However, according to the purport and legislative history, etc. of the relevant provision, the following circumstances can be revealed. In other words, the instant provision’s prohibition of installation of vessels in the East Sea Zone, such as a slope of fishing vessels, is to restrict the operation of vessels in the East Sea Zone by restricting the operation of fishing vessels in the East Sea Zone, thereby resolving disputes between the employees of the East Sea Line in the East Sea Zone and the employees of the combined fishing boats in the East Sea Zone, and preventing the mass capture of vessels in the East Sea Zone. Nevertheless, it is difficult to consider that the instant provision prohibiting installation of vessels in the East Sea Zone to directly prohibit the operation of vessels in the East Sea Zone, without directly prohibiting the operation of vessels in the East Sea Zone, and it seems that it is difficult to detect the installation of vessels in an individual fishing net for the purpose of operation.

Examining such circumstances in connection with the language, structure, etc. of the relevant provisions, a fishing vessel granted a fishery permit that is prohibited from being installed as a slope, etc. pursuant to the instant Enforcement Rule provisions based on the Fisheries Act shall be deemed prohibited from being administered in the stern even in the operational process regulated by the Fishery Resources Management Act. Therefore, if a fishing vessel in the East Sea is granted a fishery permit on the condition that it is prohibited from being installed as a slope, etc., but engages in fishing operations by installing a slope, etc. and operating it in the line using it, it shall be deemed that the fishing vessel violates the conditions of permission under the instant Enforcement Rule provisions pursuant to Articles 49(1) and 34(1)8 of the Fisheries Act, and thus constitutes a violation of the Fishery Resources Management Act, which constitutes a violation of Article 5 of the former Fishery Resources Management Act (amended by the Fishery Resources Management Act) as well as a violation of Article 49(1) and (5) of the Fishery Resources Management Act (amended by the Fishery Resources Management Act) in that it is clearly necessary to impose a penalty surcharge under Article 5 of the former Fishery Management Act.

In addition, even if interpreted as above, the provision of this case does not deviate from the scope of delegation by the mother law or violates the principle of proportionality or the principle of equality, so long as the matters delegated by the former Enforcement Decree of Article 23(2) of the Fishery Resources Management Act include the method of using fishing gear.

C. Thus, the decision of the court below that the fishing vessel of this case, which was granted a fishery permit on the condition that the installation of fishing gear, such as a slope, was in violation of the provision of the Enforcement Decree of this case by using similar facilities in the stern, is correct. In so doing, contrary to what is alleged in the grounds of appeal, the court below did not err by misapprehending the legal principles on the method of using fishing gear prohibited under the provision of the Enforcement Decree of this case or on the unconstitutionality of the provision

2. As to the third ground for appeal

The lower court rejected the Plaintiff’s assertion that the instant disposition goes against the principle of protection of trust, on the ground that the Plaintiff did not have any indication from the Defendant on the fact that the Plaintiff opened the stern of the fishing vessel and installed the roller at the bottom of the fishing vessel in the course of receiving a ship inspection or renewed a fishery permit for the instant fishing vessel, and thus, it cannot be deemed that the Defendant expressed a public view that the instant fishing vessel did not violate the prohibition conditions, such as a slope.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine, it is reasonable to conclude this conclusion, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kwon Soon-il (Presiding Justice)