Yellow Life Uniform (Law Firm Daw, Attorneys Shin Shin-sik, Counsel for the plaintiff-appellant)

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

October 1, 2003

1. The plaintiff (appointed)'s claim is dismissed.

2. The costs of lawsuit shall be borne by the plaintiff (appointed party).

On April 29, 2002, the defendant revoked the disposition of accepting the application for diving fishery by the plaintiff (appointed party; hereinafter the plaintiff) and the designated parties on April 29, 200.

1. Details of the disposition;

The following facts are not disputed between the parties, or may be acknowledged by adding up the whole purport of the pleadings to the statements in Gap evidence Nos. 1 and 2-1 to 82:

A. On April 26, 2002, the Plaintiff and the designated parties received an application for permission for diving fishing in order to collect height lights, etc. from the Cheongnam-do Sea with the Defendant on April 26, 2002.

B. On April 29, 2002, the Defendant rendered a disposition rejecting the Plaintiff’s and the designated parties’ application for permission for diving fishery (hereinafter “instant disposition”) by rejecting the Plaintiff’s and the designated parties’ application documents on the ground that the Plaintiff’s application form for permission for diving fishery was entirely disposed of the fixed number of fishery business areas and fishery permits pursuant to Article 17 of the Decree on the Protection of Fishery Resources, and that it is impossible to take a new measure of permission for diving fishery (14 cases).

2. Claims by the parties or relevant statutes;

A. The parties' assertion

As to the Defendant’s assertion that the instant disposition is a legitimate disposition under the relevant Acts and subordinate statutes, the Plaintiff asserted that the instant disposition is unlawful for the following reasons.

(1) As a result of the resource research conducted by the Seo-gu Fisheries Research Institute of the United Nations in the West-do, Chungcheongnam-do in the neighboring waters of Chungcheongnam-do, it is deemed that the key resources are relatively stable, and thus, the Defendant is obliged to accept the application for permission for diving fisheries filed by the Plaintiff and the designated parties.

The Minister of Maritime Affairs and Fisheries and the Cheongnam-do Do Do Do Do Do Do has conducted a resource survey on the neighboring sea areas of Chungcheongnam-do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do, if there is a considerable amount of resources, such as the number of diving fishery permits. Accordingly, the plaintiffs and the designated parties entrusted the Do Do Do Do Do Do Do Do 1999 and 200 Do Do Do 1999 and 200 Do Do Do Do 1999 and Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do.

Article 17 and attached Table 16 of the Decree on the Protection of Fishery Resources presented by the Defendant on the basis of the instant disposition are excessively small and medium number of fishery resources compared to the resources, such as key and other resources living in the coast of Chungcheongnam-do, and thus obstructing the efficient use of fishery resources. Since the revision of the Decree on the Protection of Fishery Resources on December 31, 1974, the fixed number of permitted fishery resources was adjusted at the time of the revision of the Ordinance on the Protection of Fishery Resources was set at 14, so the amendment has not been made so far, Article 17 and attached Table 16 of the Decree on the Protection of Fishery Resources are excessively infringed on the freedom of choosing occupation and the right to pursue happiness, which are fundamental rights guaranteed by the Constitution, and the instant disposition is also based on Article 17 and attached Table 16 of the Decree on the Protection of Fishery Resources, which are provisions contrary to the Constitution. Therefore, it is unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

3. Facts of recognition;

The following facts are not disputed between the parties, or can be acknowledged by comprehensively taking account of the whole purport of the pleadings in each of the above evidence, evidence No. 3-1 to No. 11, and evidence No. 1-1 to No. 3.

A. At around 1983, 1983, in the ocean-going dredging work for the coal-free transport vessels of the Chungcheongnam-do Do Do Do Do Do and neighboring sea areas for the use of the Do Do Do Do Do Do Do Do Do Do Do Do Do, and then, the Do Do Do Do Do Do Do Do d d d d g d d d g d d d d d d g d d d d d d g d d d d d d d d d d d d d d d d d d

B. The plaintiff et al. (hereinafter "the plaintiff et al.") did not obtain a diving fishery permit from the plaintiff et al. (hereinafter "the plaintiff et al.") showed a dynamic attitude on civil petitions such as the extension of the quota for diving fishery permit from the Ministry of Maritime Affairs and Fisheries, which were raised by the plaintiff et al. at their own expense, and requested the Maritime Ecology Research Institute to assess the resources of the Dannam-do Do Do Do Do Do Do Do Do. The above Do Do Do Do Do Do Do Gun Do Do Do Do Do Do Do Do Do Do Do Do Y, and conducted a survey by investigating the major key key fishing ground from June 13, 1997 to May 30, 198, the total quantity of Do Do 160,300/T Do 300 to five years from the three years Do Do Do Do Do 138/Do Do Do Do 138.

C. With respect to the above civil petition filed by the plaintiff et al., the Minister of Oceans and Fisheries on October 16, 1998, "The Cheongnam-do Institute of Maritime Affairs and Fisheries planned to conduct an investigation into KIKO resources in 1999 on the waters in Chungcheongnam-do, and required Cheongnam-do to examine how fishermen can temporarily use KIKO resources according to the results of the investigation." The Minister of Cheongnam-do Office decided on November 11, 1998, "The National Institute of Fisheries will increase the permitted number and allow temporary fishing according to the results after conducting an investigation into resources by June 1999." The Cheongnam-do governor decided on June 7, 200 that the fixed number of permits for diving fishery under Article 17 of the Decree on the Protection of Marine Resources should be considered as the first adjustment of the permitted number of fishery resources in City/Do (Seoul-do, 122 cases, 52 cases, 52 cases, 14 cases, etc.) but it should be considered that there is a need to re-Adjustment in the Central Fisheries Plan.

D. On March 26, 1999, the Plaintiff, the representative of the Do governor, the head of the National Fisheries Agency, the head of the Sinnam Fisheries Research Institute, the representative of fishermen who acquired diving fishery permit, and the applicant for permit for diving fishery, agreed to conduct a key resource survey for the efficient use and management of knishing resources at the coast of Chungcheongnam-Nam, and to respect the results of the survey and not raise any objection. The head of the west Sea Fisheries Research Institute, the agency conducting the survey, the head of which agreed to do so, from March 199 to August 200, the result of the resource survey for the key lighting that forms the neighboring sea area of Chungcheongnam-Nam-Nam, the knishing knishing knishing 141,00M/T, the 120,00M/T quota for the main target of fishery from March 26, 199 to May 20, 200, the 10M/T quota for each biological estimation.

E. Under the Ordinance on the Protection of Marine Resources, the Ministry of Oceans and Fisheries has already permitted the permission quota according to each City/Do under the Ordinance on the Protection of Marine Resources, and there is no remaining permission quota, and there is no restriction on the new permission quota other than the existing number of permission quota for inshore fisheries under the government policy on inshore fisheries. Thus, even though the Ministry of Oceans and Fisheries consulted with interested fishermen to implement the designation system of rearing waters that can resolve civil petitions within the scope of the relevant Acts and subordinate statutes, it is difficult to implement the designation system of rearing waters even at the time of the closing of argument in the instant case. However, there is a concern that the location, operation, permit quota, accident risk, etc. of the rearing waters is serious, and there is a concern that many fishermen and fishermen are not only the existing diving fishery business operators, and it is difficult to implement the designation system of rearing waters even at the time of closing of argument in the instant case.

f. The Donnam-do fishing vessel permitted to enter and depart from the Republic of Korea as the basis for the port of Boan-si, Chungcheongnam-do, was 27, and the annual shipment volume of the KIKO-si, Cheongnam-do, the 1,481M/T in 1996, 3,208M/T in 197, 4,305M/T in 1998, and 4,186M/T in 199.

사. 잠수기어업은 동력어선에 잠수기를 설치하여 패류등의 정착성수산동식물을 포획·채취하는 어업으로, 위와 같은 잠수기어업방식으로 허가받은 조업구역에서 서식하는 키조개를 포함한 각종 패류, 우렁쉥이, 해삼, 전복 등을 포획·채취하고 있으며, 해양수산부에서는 수산업법 제54조의2 제2항 에 의하여 어획량이 많고 경제적 가치가 큰 어종, 대한민국 주변수역에서 인접국 어선과 공동으로 이용하고 있는 어종, 자원감소로 보존관리가 필요하거나 업종간의 분쟁으로 어업조정이 필요한 어종, 시·도지사가 자원의 보호를 위하여 필요하다고 인정하여 신청한 어종 및 그 밖의 실시가능성 등을 종합적으로 고려하여 일부 어종에 대하여 총허용어획량제도(TAC)를 실시하고 있으며, 현재 총허용어획량제도가 실시되고 있는 어종은 정어리, 고등어, 전갱이, 개조개, 키조개, 붉은대게, 대게, 제주소라 등이고, 해양수산부에서는 총허용어획량제도심의위원회와 중앙수산조정위원회의 심의를 거쳐 서해안에 서식하는 키조개에 대한 총허용어획량을 4,800M/T으로 결정하였다.

4. Determination

A. Whether the Defendant is obliged to permit diving fishery

Article 41(1)1 and (4), Article 92 of the Fisheries Act, Article 25 subparag. 10 of the former Enforcement Decree of the Fisheries Act (amended by Presidential Decree No. 18121 of Nov. 4, 2003; hereinafter the same shall apply), Article 73(1)2 of the former Enforcement Decree of the Fisheries Act, Article 23(1) of the Act on Delegation of Administrative Affairs to the head of the competent Si/Gun for each fishing vessel. Article 52(1) and Article 79(1) of the Fisheries Act provide that the remaining permitted fishery business areas of Article 14 of the Fisheries Act shall not be subject to permission if the remaining permitted fishery business areas of Article 41 subparag. 1 and 5 of the Fisheries Act shall not be subject to any restriction on permitted fishery resources or fisheries areas, or if the remaining permitted fishery business areas of Article 15 of the former Enforcement Decree of the Fisheries Act shall not be subject to any restriction on permitted fishery resources for the purpose of protecting permitted fishery resources, such as the remaining permitted fishery business areas of Article 152 of the Fisheries Act.

B. Whether the principle of trust protection is violated

In general, in administrative legal relations, in order to apply the principle of the protection of trust to an administrative agency's act, 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 justified and trusted so that there is no cause attributable to the individual; third, the administrative agency should have trusted and trusted the opinion name of the individual; fourth, the administrative agency's disposition contrary to its opinion name should result in infringing the individual's interest in trust; last, when taking an administrative disposition in accordance with the above opinion name, 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, 2001, etc.). Thus, the Minister of Oceans and Fisheries and the Chungcheongnamnam-do governor did not have any other reason to recognize that there is no change in circumstances where fishermen can temporarily use friendly resources in the administrative agency's opinion or that there is no need for adjustment of reliance in the Central Fisheries Plan.

C. Whether Article 17 and attached Table 16 of the former Decree on the Protection of Marine Resources are unconstitutional or unlawful

The purpose of Article 17 and attached Table 16 of the former Ordinance on the Protection of Fishery Resources is not to prohibit diving-do residents, but to prohibit diving-do residents, including Chungcheongnam-do residents, in light of the proviso of Article 5 (1) of the Rules on the Protection of Fisheries and Report, it is difficult to find out that there are no provisions regarding the release of fishery resources within the jurisdiction of the City/Do having jurisdiction over the area where the applicant wishes to obtain the permission, and that there are no provisions regarding the release of fishery resources within the boundary of 7 inland fisheries resources including the above 5 inland fisheries resources, and that there are no provisions regarding the release of fishery resources within the boundary of 7 inland fisheries resources including the above 5 inland fisheries resources, and that there are no provisions regarding the release of fishery resources within the boundary of 7 inland fisheries resources including the above 5 inland fisheries resources, and that there are no provisions regarding the release of 1 inland fisheries resources within the boundary of 5 inland fisheries resources under the Act on the Protection of Fisheries and Report on the Protection of Marine Resources.

D. Also, even upon examining the record, there is no other error in the disposition of this case.

5. Conclusion

Therefore, the plaintiff's claim seeking revocation of the disposition of this case is without merit on the premise that the disposition of this case is illegal, and it is dismissed as per Disposition.

[Attachment List of Appointed]

Judges Han Sang-chul (Presiding Judge)