[1] Requirements for the application of the principle of the protection of trust to the acts of administrative agencies

[2] The case holding that Article 17 (1) [Attachment Table 16] of the former Ordinance on the Protection of Fishery Resources concerning the Operation Area and the Fixed Number of Permissions for Aquatic Fishery shall not be deemed to infringe on the fundamental rights under the Constitution of a person who intends to carry on a diving fishery

[1] In general in administrative legal relations, in order to apply the principle of the protection of trust to an act of an administrative agency, first, the administrative agency should name the public opinion that is the object of trust to an individual, second, the administrative agency's opinion that is justifiable and trusted shall not be attributable to the individual; third, the individual should have trusted and trusted the opinion name of the administrative agency; third, the administrative agency should have conducted any act corresponding thereto; fourth, the administrative agency's disposition contrary to the above opinion name should result in infringing on the individual's interest in trust; last, when taking an administrative disposition in accordance with the above opinion name, it shall not be likely to seriously undermine the public interest or legitimate interests of a third party.

[2] The case holding that it is inevitable to restrict the permitted number of inshore fisheries including diving fisheries in order to promote the development of fisheries by comprehensively using and protecting fishery resources, and raising the productivity of fisheries, in light of the fact that it is inevitable to restrict the permitted number of inshore fisheries including diving fisheries in order to promote the development of fisheries by taking into account not only the status of fishery resources, but also the number of persons currently operating the fisheries in question, other natural and social conditions, relationship with other fisheries, etc., such as freedom of occupation, equal rights, property rights, and fundamental rights under the Constitution, which limit the permitted number of diving fisheries to 14 cases, among the 5 districts where the area of diving fisheries is designated by Incheon Metropolitan City, Gyeonggi-do, Chungcheongnam-do, and Jeollabuk-do, and Jeollabuk-do, and that it should be taken into account not only the status of fishery resources, but also the number of persons operating the fisheries in question at issue, other natural and social conditions, and the relation with other fisheries.

[1] Article 4(2) of the Administrative Procedures Act / [2] Article 17(1) [Attachment 16] of the former Ordinance on the Protection of Fishery Resources (amended by Presidential Decree No. 18095 of Aug. 27, 2003)

[1] Supreme Court Decision 200Du8684 Decided September 28, 2001 (Gong2001Ha, 2371) Supreme Court Decision 2001Du7251 Decided November 9, 2001 (Gong2002Sang, 57) Supreme Court Decision 2001Du10851 Decided July 11, 2003 (Gong2005Du3165 Decided July 8, 2005)

Plaintiff (Appointed Party) (Attorney Lee Jae-il, Counsel for the plaintiff-appointed Party-appellant)

Chungcheongnam-do City Mayor (Attorney Jeong-hun et al., Counsel for the plaintiff-appellant)

Daejeon High Court Decision 2004Nu471 delivered on October 29, 2004

The appeal is dismissed. The costs of appeal are assessed against the Plaintiff (Appointed Party).

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

In general, in administrative legal relations, in order to apply the principle of the protection of trust to the acts of an administrative agency, the first administrative agency should name the public opinion that is the object of trust to the individual, second, the administrative agency should have no reason attributable to the individual for the trust of the individual, third, the individual should have trusted the opinion list, and third, the administrative agency should have conducted any act corresponding thereto. Fourth, the administrative agency should have made a disposition contrary to the above opinion list, which is contrary to the above opinion list, thereby infringing the interests of the individual who trusted the opinion list. Lastly, when taking an administrative disposition in accordance with the above opinion list, it should not be likely to seriously undermine the public interest or legitimate interests of a third party (see Supreme Court Decision 200Du8684, Sept. 28, 200).

In light of the above legal principles and the records, the first instance court as cited by the court below, the Minister of Oceans and Fisheries, and the Cheongnam-do Governor's response that "the Cheongnam-do shall review the measures to enable fishermen to temporarily use the kidic resources," or that "An administrative agency shall recommend the central government to adjust the permitted number of diving fishery in consideration of fishing circumstances, resource changes, etc., and thus suggest that the Cheongbuk-do should re-ordinate the permitted number of diving fishery." It cannot be deemed that the administrative agency has ordered a public opinion that is the subject of trust against individuals. In this case, it is proper to reject the plaintiff's assertion on the violation of the principle of protection of trust on the ground that there is no other public opinion or there is no evidence to acknowledge that the administrative agency should apply the principle of protection of trust. There is no error in the misapprehension of legal principles as to the principle of protection of trust.

2. Regarding ground of appeal No. 2

According to Article 41 (1) of the Fisheries Act, any person who intends to engage in any of the following fisheries shall obtain permission from the Minister of Maritime Affairs and Fisheries for each fishing vessel or fishing gear." According to Article 52 (1) 3, Article 52 (5) and Article 79 (1) 1 of the same Act, matters concerning the restriction or prohibition of catching and gathering of marine animals and plants, the number of permitted fishery resources, etc. for the sake of protecting fisheries and resources may be prescribed by Presidential Decree. According to Article 54 (1) of the same Act, any person who intends to engage in fisheries falling under any of the following subparagraphs shall be allowed to engage in coastal fisheries by comparing the remaining fisheries resources with those of the Republic of Korea with those of the Ministry of Maritime Affairs and Fisheries for each fishing vessel or fishing gear, and any other person who is in need of protection of permitted fisheries by the Governor of Do 1,000 and any other person who is deemed to have been in need of protection of permitted fisheries by the Governor of Gyeonggi-do 1, 201 among the existing Ordinance of the Fisheries of Gyeonggi-do 16.

In the above purport, the decision of the court below that rejected the plaintiff's claim for infringement of fundamental rights under the Constitution is just, and there is no error of law by misapprehending the legal principles on violation of Article 17 and attached Table 16 of the former Decree on the Protection of Marine Resources.

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 Park Jae-sik (Presiding Justice)