Whether the provisions of Article 29 of the Decree on the Protection of Fishery Resources, concerning the application of penal provisions delegated to the Decree on the Protection of Fishery Resources, are special provisions of Article 75 of the Fisheries Act (affirmative)

Article 29 of the Fishery Resources Protection Decree concerning the application of penal provisions delegated to the Ordinance on the Protection of Fishery Resources shall be deemed to fall under the special provisions of Article 75 of the Fisheries Act. Therefore, Article 75 and Article 95 subparagraph 9 of the Fisheries Act shall apply to the possession, transportation, disposal, processing or sale of marine animals and plants captured in violation of the prohibition clause (Articles 57 and 73, etc. of the Fisheries Act). However, Article 29 of the Decree on the Protection of Fishery Resources provides that the objects of the act shall be the objects of the act, specific and individual prohibition clause (Articles 9 through 11-2) of the Decree on the Protection of Fishery Resources, and Article 29 and Article 30 subparagraph 2 of the Fishery Resources Protection Act shall only apply to the act of possessing, transporting, disposing of, processing or selling marine animals and plants captured in violation of the prohibition clause (Articles 9 through 11-2 of the Fishery Resources Protection Decree).

Article 75, Article 95 subparag. 9 of the Fisheries Act, Article 11, Article 29, and Article 30 subparag. 2 of the Decree on the Protection of Fishery Resources

Defendant

Prosecutor

Daegu District Court Decision 2006No495 Decided April 20, 2006

The appeal is dismissed.

The grounds of appeal are examined.

Article 75 (Prohibition of Sale, etc. of Illegal Catch) of the Fisheries Act provides that "no person shall possess, transport, dispose of, process or sell marine animals and plants captured, gathered or cultivated in violation of this Act or any order issued under this Act, and products thereof shall carry, transport, process, or sell them." Articles 52 and 79 of the Fisheries Act provide that "any person shall not carry, transport, process or sell marine animals and plants captured, gathered, or cultivated in violation of this Act, and any specific restriction provisions necessary for coordinating fisheries, protecting resources, etc., and penal provisions for a violation thereof shall be prescribed by Presidential Decree (amended by Presidential Decree No. 19611, Jul. 14, 2006; hereinafter the same shall apply) of the Decree on the Protection of Marine Resources (Prohibition of Sale, etc. of Illegal Catchs)."

In comparison with Article 75 of the Fisheries Act and Article 29 of the Decree on the Protection of Marine Resources, only the part concerning the illegal catch, which is the object of the act, is fully identical to the act prohibited as "bearing, transportation, processing, processing, or sale". As to the fact that the large female among the facts charged in this case is possessed, transported, processed, or sold, Article 95 subparagraph 9 and Article 75 of the Fisheries Act shall apply, or Article 30 subparagraph 2, Article 29, and Article 11 of the Decree on the Protection of Marine Resources shall apply.

In the process of the amendment of the Fisheries Act and the Decree on the Protection of Marine Resources, specific and individual prohibition of capture (Article 9 through 11-2 of the Decree on the Protection of Marine Resources) may be classified into several types, such as ① aquatic animals and plants captured in violation of the prohibition of capture without obtaining a license, permission or reporting under the Fisheries Act (Article 57 of the Fisheries Act), ② aquatic animals and plants captured in violation of the prohibition of capture (Article 73 of the Fisheries Act), ② aquatic animals and plants captured in violation of the prohibition of capture (Article 73 of the Fisheries Act) without using harmful fishing methods, such as explosives, toxic substances, electricity, etc., ③ aquatic animals and plants captured in violation of the prohibition of capture (Articles 9 through 11-2 of the Decree on the Protection of Marine Resources), and ④ aquatic animals and plants captured in violation of the prohibition of capture (Article 75 of the Fisheries Act).

Article 13 of the former Decree on the Protection of Fishery Resources (amended by Presidential Decree No. 6434, Dec. 30, 1972) provides that "the catch captured without obtaining a license, permission or making use of explosives, electric currents or harmful substances, or without being caught in violation of the provisions of Articles 9 through 11 shall not be possessed, traded, exchanged, transferred, entrusted or entrusted for the purpose of sale" (Article 13 of the former Ordinance on the Protection of Fishery Resources). (2) The above prohibition provision merely provides for the protection of fishery resources, but also provides for the prohibition of sale, etc. (Article 70 of the former Ordinance on the Protection of Fishery Resources). (4) After the amendment by Presidential Decree No. 2836, Dec. 31, 1975, Article 13 of the former Ordinance on the Protection of Fishery Resources (amended by Presidential Decree No. 977 of the Fisheries Act) was newly established, and subsequent to the amendment by the former Fisheries Act, Article 97 of the former Ordinance on the Protection of Fishery Resources Act No. 197 of the same Ordinance.

However, in comparison with Article 70 of the former Fisheries Act (amended by Act No. 4252, Aug. 1, 1990) (amended by Act No. 4252, Aug. 1, 1990) as of December 30, 1995, Article 75 of the former Fisheries Act (Prohibition of Sale, etc. of Illegal Catch) was amended by Act No. 5131, Dec. 30, 1995, the object of the above act (the type No. 45 of this Act) has been extended to “Possession, transportation, disposal, and processing” other than “sale,” and then Article 29 of the Decree on Fishery Resources Protection was amended by Presidential Decree No. 15242, Dec. 31, 1996; Article 75 of the former Fisheries Act provides that “The catch or its products captured and gathered in violation of the provisions of Articles 9 through 11-2 shall not possess, transport, process, or sell it.”

Although the phrase “order under this Act”, which has been maintained after the establishment of Article 70 of the Fisheries Act on December 31, 1975 and has been maintained until the establishment of Article 75 of the current Fisheries Act, may still be interpreted as including each provision of the above Decree on the protection of fishery resources, in light of the method of the above two provisions and the maintenance process thereof, at least after the amendment of the Fisheries Act on December 30, 1995 and the amendment of the Decree on the protection of fishery resources on December 31, 1996, it is reasonable to view that the provisions of Article 29 of the Decree on the Protection of Fishery Resources fall under the special provision of Article 75 of the Fisheries Act, and therefore, it is reasonable to view that the provisions of Article 29 of the Fisheries Act on the protection of fishery resources fall under the special provision of Article 75 of the current Act on the protection of fishery resources (Article 57, Article 73, etc. of the Fisheries Act, and Article 29 through 57 of the Fisheries Act).2 of the Fisheries Act on the sale of marine resources, without the specific type of 9 or Ordinance.

Meanwhile, Article 3 (Scope of Application) (1) of the Decree on the Protection of Fishery Resources provides that "this Decree shall apply to matters concerning fishery control, hygiene control, distribution order and other coordination under Article 52 of the Fisheries Act (hereinafter "the Act"), matters concerning the establishment of total catch quota under Article 54-2 of the Act, and matters concerning the protection of resources under Article 79 of the Act, except as otherwise provided in accordance with the Act and the Enforcement Decree of the Fisheries Act." However, it is related to cases where the provisions of the Decree on the Protection of Fishery Resources and the Enforcement Decree of the Fisheries Act concerning the same matters are inconsistent and inconsistent with each other. However, in applying Article 29 of the Decree on the Protection of Fishery Resources under Article 75 of the Fisheries Act (hereinafter "the Act"), it is difficult to see Article 75 of the Fisheries Act as being "in accordance with the Act and the Enforcement Decree of the Fisheries Act" as stated in Article 3 (1) of the same Act.

Therefore, the judgment of the court below that Article 30 subparag. 2 and Article 29 of the Decree on the Protection of Fishery Resources, not Article 95 subparag. 9, Article 75 of the Fisheries Act, applies to the facts charged of this case is just, and there is no error in the misapprehension of legal principles as alleged in the grounds of appeal.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)