The meaning of "the case of catching, gathering, or cultivating marine animals and plants by means of fisheries other than those under this Act" under Article 58 of the Fisheries Act and the method of determining whether the act of catching, gathering, or cultivating marine animals and plants constitutes "fisheries"

In full view of the relevant provisions, legislative purport, etc. of the Fisheries Act, it is reasonable to interpret that punishment under Articles 94(1)3 and 58 of the Fisheries Act is imposed only to cases where a person captures, gathers, or cultivates marine animals and plants by means of fisheries other than fisheries under the Fisheries Act. Therefore, if a person does not constitute “fisheries”, the person may not be punished pursuant to the aforementioned provisions. In this context, whether an act of catching, gathering, or cultivating marine animals and plants constitutes a fishery business shall be determined in accordance with ordinary social norms by comprehensively taking into account various circumstances, such as the repetition of the act, continuity of the act, existence of business nature, etc., and the purpose, size, frequency, mode, etc. of the act, as well as the case where a person has engaged in catching, gathering, or cultivating marine animals and plants continuously and continuously and repeatedly, as well as the case where a person has engaged in catching, gathering,

Subparagraph 2 of Article 2, Article 58, and Article 94 (1) 3 of the Fisheries Act

Defendant 1 and one other

Defendants

ElucidationS

Judicial Trainees Hungyeong

Daejeon District Court Decision 2008Gohap341 Decided December 11, 2008

The judgment of the court below is reversed.

Defendants are not guilty

1. Summary of grounds for appeal;

misunderstanding of facts or misunderstanding of legal principles (the defendants found sea ginseng during the Kinscoo as part of hobby activities and collected it for the purpose of sale, not from collecting sea ginseng for the purpose of sale, and therefore the defendants' actions are not included in the subject of punishment prescribed in the Fisheries Act).

2. Determination

A. Summary of the facts charged in this case

No one shall capture or gather marine animals or plants by means other than those of fisheries under the Fisheries Act.

On May 19, 2008, at around 07:10 on May 19, 2008, the Defendants conspired to load diving equipment, such as air tank, from the Yanpo-si, Yanpo-gun, Yan-gun, Chungcheongnam-gun, Chungcheongnam-do, to load the leisure boat (115 Emb.) and depart from the port, and Defendant 1 operated the said boat and arrived at approximately 1.4 mams at the Yan-do, Yan-do, Yan-do, Yan-do, Yan-do, Yan-do, and at that point, Defendant 2 took a water tank, dive equipment, wears a water tank, diving, diving, and collected at least 40 kilograms (400,00 won) from around 07:40 on the same day to around 10:0 on the same day.

B. The judgment of the court below

The court below convicted the defendants on the ground that Article 58 of the Fisheries Act does not divide the purpose of gathering marine animals and plants and prohibits gathering of marine animals and plants by a method other than the method of fishery stipulated in the Fisheries Act, and even if the defendants taken sea water without the purpose of fishery or sale without the purpose of fishery, the defendants violated the Fisheries Act as long as they do not violate the social rules due to the simple leisure activity. In light of the various circumstances at the time of the case, the defendants did not seem to have taken sea water as a mere leisure activity.

C. Judgment of the court below

Article 94(1)3 of the Fisheries Act provides that "no one shall capture, gather, or cultivate marine animals and plants by any means other than a fishery business under this Act" and Article 94(1)2 of the same Act provides that "no one shall capture, gather, or cultivate marine animals and plants by any means other than a fishery business under this Act" shall be punished by imprisonment with labor for not more than three years or by a fine not exceeding 20 million won, in cases of violation of Article 58 of the same Act. On the other hand, Article 58 of the same Act provides that "no one shall capture, gather, or cultivate marine animals and plants by any means other than a fishery business under this Act." Article 2 Subparag. 2 of the same Act provides that "fisheries" means a business of catching, gathering, or cultivating marine animals and plants" with respect to the method of fishery business as a licensed fishery business, and Article 94(1)3 of the same Act provides that any fishing business shall be punished by fishing fishing fishing, seaweeds fishing, fish, fish farming, combined fish farming, fish farming, fisheries by permit, seed production fisheries by 4).

In addition, Article 1 of the Fisheries Act provides that "the purpose of this Act is to promote the development of fisheries and the democratization of fisheries by establishing a basic system for fisheries, creating and protecting fishery resources, utilizing and managing waters comprehensively, and raising the productivity of fisheries."

In full view of the above provisions, legislative purport, etc., it is reasonable to interpret that punishment under Article 94(1)3 and Article 58 of the Fisheries Act is limited to cases where a person captures, gathers, or cultivates marine animals and plants by means of fisheries other than those under the Fisheries Act.

Unlike the above, the court below's determination that "Article 58 of the Fisheries Act prohibits the gathering of marine animals and plants by means other than those of fishery under the Fisheries Act without dividing the purpose of gathering marine animals and plants and by means other than those of fishery under the Fisheries Act." Thus, even if sea water is taken without the purpose of fishery or sale, so long as the mere leisure activity does not violate social norms, it goes beyond the scope of interpreting the text.

Therefore, if the act of catching, gathering, or cultivating marine animals and plants does not constitute fishery business, it cannot be punished in accordance with the above provision.

Here, whether the act of catching, gathering, or cultivating marine animals and plants constitutes a fishery business shall be determined in accordance with social norms by comprehensively taking into account various circumstances, such as repetition and continuity of the act, existence of business nature, etc., and the purpose, size, frequency, period, mode, etc. of the act, and the act of catching, gathering, or cultivating marine animals and plants as well as the case where the act of catching, gathering, or cultivating such marine animals and plants has been conducted repeatedly and continuously as well as the case where the act of catching

According to the records, at the time of the instant case, Defendant 1 was driving a leisure boat and moving Defendant 2 to a diving place, and Defendant 2 collected sea ginseng by wearing and diving scoo equipment, and Defendant 2 collected sea ginseng. The market price of sea ginseng collected at approximately KRW 40,000 square meters is equal to KRW 40,000,000.

However, according to the records, even if Defendant 2 (work site, job omission) was an employee of the Korea Construction and Management Corporation who works as the head of the fire-fighting department at the Pyeongtaek New Airport Construction & Transportation site supervision team, Defendant 1 was a person who runs the house of private use at the present place of residence, the Defendants became aware of the same ice scoocoo as a hobby ice member before 4 to 5 years from ice scoo scoo scoo scoo scoo scoo scoo scoo scoo scoo scoo scoo scoo scoo scoo scoo scoo scoo scoo scoo scoo scoo scoo scoo scoo scoo scoo scoo scoo scoo scoo scoo scoo scoo scoo sc.

In addition, there is no other objective evidence that the defendants engaged in the fishery business.

Therefore, since the facts charged in this case constitute a case where there is no proof of criminal facts, it shall be pronounced not guilty pursuant to Article 325 of the Criminal Procedure Act, and the judgment of the court below which differs from this conclusion is erroneous in the misunderstanding of facts or misapprehension of legal principles

3. Conclusion

Therefore, the defendant's assertion is with merit, and the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

The summary of the facts charged in this case is as examined in the above Paragraph 2-A, and as seen in Paragraph 2-C of the above Article, the facts charged in this case constitutes a case where there is no proof of crime, and thus, it is pronounced not guilty under the latter part of Article 325

Judges Kim Jae-hwan (Presiding Justice)

1) Article 58 (Prohibition of Fisheries Other than Licensed, Permitted, or Reported Fisheries) of the Fisheries Act shall not capture, gather, or cultivate marine animals and plants by any method of fisheries other than those under this Act: Provided, That on the waters designated as the rearing waters pursuant to Article 68 (1), a person may catch, gather, or cultivate marine animals and plants by a method of fisheries in accordance with the management regulations of the waters.

2) The definitions of the terms used in this Act are as follows:

1. Business of cultivating seaweeds: Business of cultivating seaweeds in a demarcated area of waters and by installing necessary facilities under water as set forth in subparagraphs 2 through 4 and 6; 3. Business of cultivating seaweeds; 4. Business of cultivating shellfishes in a demarcated area of waters and using the seabed or installing necessary facilities under water; 5. Business of cultivating shellfishes in a demarcated area of waters; 5. Business of cultivating shellfishes in a demarcated area of waters by using the seabed or installing necessary facilities under water: Business of cultivating shellfishes in a demarcated area of waters; 5. Business of cultivating fishes or similar: Business of cultivating marine animals other than shellfish in a demarcated area of waters by using the seabed or installing necessary facilities under water as prescribed in subparagraphs 2 through 4 and 6; and

4) A person who intends to engage in any of the following fisheries shall obtain permission from the Minister for Food, Agriculture, Forestry and Fisheries for each fishing vessel or fishing gear. 1. Deleted. 2. Deleted. (2) A person who intends to engage in any of the following fisheries shall obtain permission from the competent Mayor/Do Governor for each fishing vessel, fishing gear, or facility. 1. A person who uses a powered fishing vessel, a powered fishing vessel, or a powered fishing vessel with a gross tonnage of less than eight tons, but less than ten tons, or a fishing vessel with a gross tonnage of less than eight tons, which uses a powered fishing vessel or a powered fishing vessel with a gross tonnage of less than eight tons as prescribed by Presidential Decree (hereinafter referred to as "coastal fishing vessel or an artificial fishing gear within the demarcated sea area prescribed by Presidential Decree." (hereinafter).

주5) 수산업법 제46조 (신고어업) ① 제8조·제43조 또는 제44조에 따른 어업 외의 어업으로서 대통령령으로 정하는 어업을 하려면 어선·어구 또는 시설마다 시장·군수·구청장에게 농림수산식품부령으로 정하는 바에 따라 신고하여야 한다.〈개정 2008.2.29.〉 ◎ 수산업법 시행령 제38조 (신고어업) ① 법 제46조 제1항에 따른 신고어업의 종류는 다음 각 호와 같다. 1. 맨손어업 : 손으로 낫·호미·해조틀이 및 갈고리류 등을 사용하여 수산동식물을 포획·채취하는 어업 2. 나잠어업 : 산소공급장치 없이 잠수한 후 낫·호미·칼 등을 사용하여 패류, 해조류, 그 밖의 정착성 수산동식물을 포획·채취하는 어업 3. 투망어업 : 투망을 사용하여 수산동물을 포획하는 어업

주6) 스킨스쿠버 다이빙[skin-scuba diving]은 간단한 보조용구 또는 수중호흡기를 몸에 부착하고 물속에 잠수하는 것을 말한다. 수중다이빙이라고도 하며, 수중 마스크·핀·스노클을 부착하고 잠수하는 스킨다이빙(skin diving)과 아쿠아렁(aqualung:수중폐) 등을 메고 잠수하는 스쿠버다이빙(scuba diving)으로 구분된다. 스킨다이빙은 스노클다이빙 또는 스노클링이라고도 하는데, 그 역사는 수영만큼이나 오래 되었다. 1920년~1930년대 지중해와 미국에서 처음 대중화되었고, 19세기부터 장비제작이 시작되어 스킨다이빙이 대중화되었으며, 1959년에는 세계수중연맹(CMAS)이 창설되었다. 스킨다이빙에서는 잠수기 없이 높은 수압에 견디면서 들이쉰 공기만으로 잠수하기 때문에 한정된 시간밖에 머무를 수가 없다. 잠수시간은 일반 성인이 30초~2분 정도이고, 세계기록도 4분 정도이다. 깊이도 수압차와 잠수시간의 관계로 5~20m 정도이나, 40m까지 잠수한 기록도 있다. 수심 2m 정도까지는 괜찮으나 2m보다 깊이 잠수하면 수압 때문에 귀에 통증을 느끼고 고막이 터지는 일도 있으므로, 코를 쥐고 공기를 내이(내이)로 보내어 고막을 밀어준다. 스쿠버다이빙은 봄베의 공기가 있는 한 수중에 머무를 수 있다. 그러나 고압의 공기를 들이쉬고 있기 때문에 여러 가지 장애가 일어나는 수가 있으므로, 실제 사용에 있어서는 기술적인 훈련이 필요하다.