The case holding that, in case where only a statutory penalty exists separately under the Fisheries Act and the Presidential Decree enacted by delegation of the Fisheries Act as a mother corporation with respect to the transportation of female females subject to prohibition of capture as prescribed by the Ordinance on the Protection of Marine Resources, the age of fishery resources, which is less favorable to the defendant, should be preferentially applied in accordance with the basic ideology of criminal law.

With respect to the act of transporting females illegally captured in violation of Article 11, Article 95 subparagraph 9, Article 75 of the Fisheries Act, as well as Article 30 subparagraph 2, Article 29, and Article 11 of the Decree on the Protection of Marine Resources is the ground for the punishment, and in cases where the legislative purpose and elements of a crime are almost the same as those of the Presidential Decree enacted by the mother Act and the delegation thereof, and where only the statutory penalty exists separately, in light of the literal interpretation of Article 75 of the Fisheries Act, and the legislative history of the Fisheries Act and the Ordinance on the Protection of Marine Resources, if there is room for controversy over the confirmation of the grounds for punishment in light of the language and text interpretation of Article 75 of the Fisheries Act, the Decree on the Protection of Marine Resources, which is less favorable to the defendant, should be applied preferentially.

[1] Articles 75, 79, and 95 subparag. 9 of the Fisheries Act; Articles 1, 3, 11, 29, and 30 subparag. 2 of the Decree on the Protection of Fishery Resources

Defendant

Defendant

Attorney Kim Sang-ap

Daegu District Court Decision 2002Dadan35 decided March 13, 2002

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 5,000,000.

When the defendant does not pay the above fine, the defendant shall be confined in a workhouse for the period calculated by converting 30,000 won into one day: Provided, That the fractional amount shall be one day.

The 54 days of detention before the pronouncement of the judgment below shall be included in the period of detention in the workhouse.

The seized large rocks shall be confiscated by 1,846ma (the sequence 12, 2002 pressures of the Daegu District Prosecutors' Office).

To order the defendant to pay the amount equivalent to the above fine.

1. The gist of the grounds for appeal by the Defendant is that the sentence of the lower court is too unreasonable.

2. We examine ex officio prior to the judgment on the grounds for appeal.

A. The judgment of the court below

Based on its macroficial evidence, the court below recognized the fact that the defendant purchased 1,846 mar of 1,846 mar, which was illegally captured from his name-free persons at the rest area located in the area of the Gungjin-gun, Ulsan-gun on January 18, 2002, and loaded the cargo on the cargo owned by the defendant in order to sell it in the gravel market located in Busan, and transported the cargo to Tolbane located in the Gyeongnam-si, the court below applied Article 95 subparagraph 9 and Article 75 of the Fisheries Act to this end.

(b) Judgment of this Court on applicable provisions of law;

(1) The Fisheries Act and the Decree on the Protection of Fishery Resources

Article 75 (Prohibition of Sale, etc. of Catchs) of the Fisheries Act applied by the court below shall not be permitted to possess, transport, dispose of, process or sell marine animals and plants captured, gathered or cultivated in violation of this Act or an order under this Act, and Article 95 (9) of the same Act shall be punished by imprisonment with prison labor for not more than two years or by a fine not exceeding five million won. Meanwhile, Article 79 (Order on Resource Protection) (1) and (2) of the Fisheries Act (this Article 52 (3) of the same Act shall apply mutatis mutandis and shall not be punished by a fine not exceeding five million won, and the Decree of the Protection of Marine Resources enacted pursuant to the delegation of Article 1 (1) of this Decree shall not contribute to the balanced development of industries, such as the propagation and protection of fishery resources, and Article 95 (2) of the Fisheries Act shall not apply to any person who violates the provisions of Article 95 (9) of the same Decree.

(2) Determination:

First of all, the court below seems to have decided that the defendant was captured in violation of Article 11 of the Decree on the Protection of Fishery Resources. According to the above relevant provisions, with respect to the possession, transportation, disposal, processing, or sale of catches captured and gathered in violation of Articles 9 through 11-2 of the Decree on the Protection of Fishery Resources, such as the crime of this case, Article 95 subparagraph 9, Article 75 of the Fisheries Act applied by the court below, in addition to Article 30 subparagraph 2, Article 29, and Article 11 of the Decree on the Protection of Fishery Resources, as well as Article 30 subparagraph 2 of the Fisheries Act applied by the court below, Article 75 of the Fisheries Act.

However, in a case where the legislative purpose and the elements of a crime are almost identical to the Presidential Decree enacted according to the parent law and the delegation thereof, and only the statutory penalty exists separately, it is difficult to regard them as falling under the crimes of acceptance and punishment under the substantive law. In addition, considering the fact that Article 3 of the Decree on the Protection of Marine Resources explicitly excludes the provisions under the Fisheries Act and the Enforcement Decree of the Fisheries Act, it is reasonable to see that only one of the above penal provisions under the Fisheries Act and the Decree on the Protection of Marine Resources should be applied to the crime of this case.

Therefore, as long as it is evident that the instant provision should be applied to the instant criminal facts, first of all, the instant criminal facts were captured in violation of the Decree on the Protection of Marine Resources, which is an order under the Fisheries Act, and as long as it is evident that the instant large store transported by the Defendant in violation of the Ordinance on the Protection of Marine Resources under the Fisheries Act, Article 90 Subparag. 9 and Article 75 of the Fisheries Act are applied. Accordingly, this is excluded from the scope of application of the Decree on the Protection of Marine Resources as it constitutes a case where the Fisheries Act prescribed under Article 3 of the Decree on the Protection of Marine Resources. As a result, there is no room to regard that the said penal provision of

However, in light of the language and text of Article 75 of the Fisheries Act and its contents are subject to marine animals and plants cultivated in violation of the provisions of Article 29 of the Decree on the Protection of Fishery Resources, etc., and the fact that the above provision seems to be applicable to the possession and transportation of fish without a license or harmful fishing, etc., it can be interpreted as a supplementary provision under the Fisheries Act and the Decree on the Protection of Fishery Resources, which would be applicable in cases where there is no separate prohibition and penal provision. Furthermore, the amended Fisheries Act, as of December 30, 1995, prohibits sale of the existing fishery resources, such as fish without a license or the disposal of fish without a license or the disposal of fish without a license or the disposal of fish without a license or the disposal of fish without a license or the disposal of fish without a license or the disposal of fish without a license or the disposal of fish without a license or the disposal of fish without a license or the disposal of fish without a license or the disposal of fish for the purpose of Article 19 of the Fisheries Act.

Thus, in the case where the facts charged are the same as this case, the court may ex officio apply the law without being able to apply the applicable provisions of the indictment written by the prosecutor. Thus, despite the application of Articles 30 subparag. 2, 29, and 11 of the Decree on the Protection of Marine Resources to the facts charged of this case, the court below erred by misapprehending the legal principles on the Fisheries Act and the Decree on the Protection of Marine Resources. Thus, the judgment of the court below is reversed ex officio under Article 364(2) of the Criminal Procedure Act and it is again decided as follows after pleading.

Criminal facts and summary of evidence

The summary of the criminal facts and the evidence of the defendant recognized by this court is the same as the statement in each corresponding column of the judgment of the court below, and thus, they are cited in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Article applicable to criminal facts;

Article 30 Subparag. 2, Article 29, and Article 11 of the Decree on the Protection of Fishery Resources

2. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

3. Calculation in the number of detention days before sentencing;

Article 57 of the Criminal Act

4. Land to be submerged;

Article 48 (1) 1 of the Criminal Act

5. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

It is so decided as per Disposition for the above reasons.

Judges Sho-ho (Presiding Judge)