[1] The limits of the delegated legislation and the criteria for determining the scope of delegation

[2] Whether Article 23 (4) of the Decree on the Protection of Fishery Resources concerning Restriction, etc. of Fishing Vessels and Fishing gear violates the principle of prohibition of comprehensive delegation (negative)

[3] The limits of re-election

[4] Whether Article 23 (4) of the Decree on the Protection of Fishery Resources for Restriction, etc. of Fishing Vessels and Fishing gear constitutes a delegation of blank (negative)

[1] Articles 75 and 95 of the Constitution / [2] Article 52 (1) of the Fisheries Act, Article 23 (4) of the Decree on the Protection of Marine Resources, Article 95 of the Constitution / [3] Articles 75 and 95 of the Constitution / [4] Articles 52 (1) of the Fisheries Act, Article 23 (4) of the Decree on the Protection of Marine Resources, Article 95 of the Constitution

[1] Supreme Court Decision 2001Du5651 Decided August 23, 2002 (Gong2002Ha, 2221) Supreme Court Decision 2003Du10701 Decided January 29, 2004 (Gong2004Sang, 398), Supreme Court Decision 2003Du7606 Decided July 22, 2004 (Gong2004Ha, 1530), Supreme Court Decision 2004Da3040 Decided March 25, 2005 (Gong205Sang, 664) / [3] Constitutional Court en banc Decision 94Hun-Ma213 Decided February 29, 196 (Gong14, 2266)

Kim Jong-su et al. (Law Firm Lee & Lee, Attorneys Kim Young-soo et al., Counsel for the defendant-appellant)

Samm Market (Law Firm Jeong-dong International Law, Attorneys Seo Dong-hee et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2003Nu19496 delivered on November 24, 2004

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

We examine the grounds of appeal.

1. As to the assertion of violation of the principle of prohibition of comprehensive delegation and re-election

An order of delegation can be issued when an individual delegation that specifically sets a scope in the Act or upper level order is possible. Here, the specific scope of delegation varies depending on the type and character of the subject matter to be regulated, and thus, uniform standards cannot be set. However, at least, since the basic matters of the contents and scope to be stipulated in the delegation order are specifically stipulated in the relevant Act or upper level order, anyone can predict the outline of the contents to be stipulated in the delegation order from the relevant Act or upper level order. In this case, the predictability of the delegation provision should not be determined with only one of the pertinent delegation provisions, but the overall structure and purpose of the relevant delegation provision, the relevant delegation provision form and content of the relevant delegation provision, and relevant Acts and subordinate statutes must be systematically integrated, and further, the specific individual review should be conducted according to the nature of each regulation (see, e.g., Supreme Court Decisions 2001Du5651, Aug. 23, 2002; 2003Du7606, Jul. 22, 2004; 304).

The purpose of the Decree on the Protection of Fishery Resources is to contribute to the balanced development of fisheries by prescribing matters concerning the propagation and protection of fishery resources (Article 1). The scope of the Decree on the Protection of Fishery Resources is that the fishery control, hygiene control, distribution order and other matters concerning fisheries under Article 52 of the Fisheries Act (Article 3). In Article 23(1), (2) and (3) of the Decree on the Protection of Fishery Resources, part of the matters prescribed in Article 52(1)2 and (4) of the Fisheries Act (limited or prohibition on the number, size, facilities and methods of fishing vessels, and the use of fishing gear) are prescribed more in detail, and it is difficult to determine that “the scale and scale of fishing vessels, the number of vessels and their affiliated vessels, the scale of vessels, the scale of fishing gear and other matters necessary for the protection of fishery resources” in Article 23(4) of the Decree on the Protection of Fishery Resources, and therefore, it is difficult to consider that the Act on the Protection of Fishery Resources and other matters necessary for the protection of Fisheries can be seen in light of the aforementioned Act or the regulations on the scope of fishery resources.

In addition, re-elections without entirely stipulating the matters delegated by the law are contrary to the legal principles of the prohibition of delegation (the prohibition of delegation) and it brings about changes in the contents of the delegation law, so it is not permitted. However, if the delegated matters are determined by the authority and the specific scope of the delegated matters are determined and delegated to the subordinate laws and regulations, re-elections shall be allowed (see Constitutional Court Order 94Hun-Ma213, Feb. 29, 1996, etc.).

Article 23(1) of the Decree on the Protection of Fishery Resources provides that “Restriction or prohibition on the number of fishing vessels, size, equipment, and fishing method,” for the coordination of fisheries delegated by Article 52(1) of the Fisheries Act, such as the loading of a specific fishing gear, the prohibition on the remodeling of vessels, the restriction on the number of fishing vessels, etc. for the purpose of operating the fishing gear, and the restriction on the number of fishing vessels.” Article 23(4) of the Decree on the Protection of Fishery Resources further delegates specific and detailed matters that are difficult to be stipulated in advance or require professional capacity, among the restrictions or prohibition on the protection of fishery resources and coordination of fisheries, to the subordinate statutes, and thus, it cannot be deemed that the delegation of a blank letter under Article 23(4)

In the same purport, the court below is just to reject the plaintiffs' assertion on the violation of the principle of prohibition of comprehensive delegation and re-election, and there is no error of law such as misunderstanding of legal principles or violation of the Constitution.

2. As to the assertion of violation of the principle of proportionality and the principle of equality in the notice on coordination of coastal and inshore fisheries of this case (No. 2001-59 of the Ministry of Oceans and Fisheries’s notice)

The court below's decision is justified in holding that the above notification of the Ministry of Oceans and Fisheries is not against the principle of proportionality and the principle of equality, etc. that the court below is not against the principle of proportionality and the principle of equality, and there is no error of law such as misconception of facts against the rules of evidence, or misunderstanding of the legal principles as to deviation or abuse of discretionary power, such as the principle of proportionality and equality, as otherwise alleged in the ground of appeal.

3. Conclusion

Therefore, all appeals are 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 on the bench.

Justices Park Jae-sik (Presiding Justice)