Defendant

Prosecutor

Dried bars

Attorney Noh Jeong-hee (Korean National Assembly)

Incheon District Court Decision 2007 High Court Decision 2538 Decided August 1, 2008

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

According to the former Harbor Transport Business Act (amended by Act No. 8852 of Feb. 29, 2008) and the Enforcement Decree of the same Act, “ship oil supply business” which must be registered with the competent authority refers to “business supplying fuel oil for ships,” and “ship fuel oil” is “fuel used for ships’ operation.” However, the lower court determined that the Defendant’s provision of fuel oil for ships’ operation is not a crime of violation of the Harbor Transport Business Act by deeming that the Defendant supplied oil necessary for machinery, such as power generators, locker, and compact shower, installed in barge, not for ships’ operation, and that it did not constitute a crime of violating the Harbor Transport Business Act. As such, the lower court erred by misapprehending the legal principles or misapprehending the legal principles, since the reduced interpretation of “ship fuel oil for ships” results in opening the way for an enterprise failing to meet the requirements for registration to supply fuel, thereby preventing any unlawful evasion of the law.

2. Relevant provisions;

former Harbor Transport Business Act (amended by Act No. 8852, Feb. 29, 2008; hereinafter “Act”)

Article 2 (Definitions)

The term "harbor transport-related business" in this Act means a harbor service business, commodity supply business, ship oil supply business and container repair business providing goods or services to ships in the harbor, and details of a business by type of business shall be prescribed by Presidential Decree.

Article 26-3 (Registration of Business)

Any person who intends to conduct a harbor transport-related business under paragraph (1) shall register with the chief of a regional maritime affairs and fisheries office as prescribed by the Ordinance of the Ministry of Maritime Affairs and Fisheries: Provided, That any person who intends to conduct a goods supply business shall report to the chief of a regional maritime affairs and fisheries office having jurisdiction over a harbor in which the head office or the principal office is located, and the business area shall be a harbor

Article 30 (Penalty Provisions) Any person who falls under any of the following subparagraphs shall be punished by imprisonment for not more than one year or a fine not exceeding ten million won:

A person who has managed the harbor transport-related service without making the registration or report as referred to in subparagraph 2 and Article 26-3 (1).

Enforcement Decree of the Harbor Transport Business Act (amended by Presidential Decree No. 20722 of Feb. 29, 2008, hereinafter referred to as the "Enforcement Decree")

Article 2 (Types of Harbor Transport-Related Business) Details of a business by type of harbor transport-related business under Article 2 (4) of the Harbor Transport Business Act shall be as follows:

Ship oil supply business: Business supplying fuel oil for ships;

3. Summary of the facts charged and the judgment of the court below

A. Summary of the facts charged

Of the facts charged in this case, the summary of the charge of violating the Harbor Transport Business Act is that the Defendant is the actual owner and operator of the general petroleum retail business located in ○○dong-dong, Incheon, and the person who intends to operate the harbor transport-related business is registered with the chief of the regional maritime affairs and fisheries office as prescribed by Ordinance of the Ministry of Oceans and Fisheries by port and type of business. However, on December 19, 2006, the Defendant supplied the Incheon Ship Registry (300 tons) working at the sea at the construction site of the construction site of the Incheon-dong-dong-dong Yan-dong, Incheon-dong Yan-dong, Incheon, and the 360-liter market price of 415,440 won via 56 times from around that time to February 26, 2007, such as supplying the 69,644-liter (3484,8484,6860,000 won) through a total of 56 times as shown in the annexed crime list.

B. The judgment of the court below

In accordance with the records, the court below acknowledged that ① the Defendant supplied oil, such as light oil, light oil, etc. to the barge, △△△△, and the barge, as stated in the above facts charged: ② the above oil supplied by the Defendant was used in machinery, such as power generators installed in △△ and △△△△ and knives; ② the instant oil was supplied by the Defendant; ③ the instant machinery did not put oil through oil sold on the land as land, but did not put oil through oil oil sold on the land; ④ the Nonindicted Party, the captain of the construction site, supplied oil from the Defendant even if oil was lower than oil supplied by the Defendant; ⑤ in the case of △△△ and knives, the Defendant supplied the above barge with oil for the purpose of storing the oil for each of the machinery of this case, and, in the case of △△ and knives, it did not constitute a crime of supplying the Defendant’s ship oil for the purpose of operating the Defendant’s business, and thus, deemed that it does not constitute a crime of supplying the Defendant’s ship oil to the Defendant.

4. Judgment of the court below

However, the interpretation of penal provisions should be strict, and it is not permissible to interpret the meaning of penal provisions excessively or analogically in the direction unfavorable to the defendant as it is against the principle of no punishment without law (see Supreme Court Decision 2002Do4758, Nov. 24, 2005). Article 2 Subparag. 3 of the Enforcement Decree defines "ship oil supply business" as "business supplying ship fuel oil," and does not have the definition provision of "ship fuel oil" as "ship oil," but it is not easy to strictly regulate all kinds of fuel oil used for the operation of general land machinery without relation to navigation within the ship, and it is reasonable to interpret it as "fuel oil used for the purpose of navigation of ship" as "in light of the principle of no punishment without law, it is unreasonable to interpret it as "a matter of no punishment without law," and it is also unreasonable to interpret it as "a matter of no punishment without law, which is provided for the purpose of expanding the use of ship's oil for the purpose of operation of ship," and it is also necessary to interpret it as "a matter of no punishment without law."

5. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

【Crime Disturbing Table】

Judges Dok-ho (Presiding Judge)