Article 13 of the Fisheries Act and Article 6 of the Enforcement Decree of the former Fisheries Act, the nature and effect of the priority determination under the same Act.

Article 13 of the Fisheries Act provides that the Do governor shall establish a plan for the use of fishing grounds and obtain approval from the Commissioner of the Fisheries Administration, and the order of persons eligible to obtain a license preferentially to other persons within the scope of the plan, and the priority decision under the provisions of Article 6 (1) through (3) of the former Enforcement Decree of the Fisheries Act (amended by Presidential Decree No. 14508 of Dec. 31, 1994) shall be an act of promising the administrative agency to take precedence over other persons in the absence of any other reason for not granting a license, and the provisions of Article 6 (4) of the Enforcement Decree of the same Act shall be interpreted as the provision to the effect that the administrative agency which received an application for a license from the person determined as the priority pursuant to the procedures of Article 6 (1) through (3) of the same Act shall be construed as the provision to the effect that if the administrative agency which received an application for a license is not able to grant a license without delay.

Articles 8 and 13 of the Fisheries Act; Article 6 of the former Enforcement Decree of the Fisheries Act (amended by Presidential Decree No. 14508 of Dec. 31, 1994)

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant-appellee-appellant-appellee-appellant-appellee-appellant-Appellee-appellant-Appellee-Appellee

Plaintiff (Attorney Han-chul et al., Counsel for the plaintiff-appellant)

Head of the Gun Office

Gwangju High Court Decision 94Gu2700 delivered on June 16, 1995

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

As to the fourth ground for appeal

In order to comprehensively use and develop waters under the jurisdiction of the Do governor, the Fisheries Act (hereinafter referred to as the "Act") provides that the Do governor shall establish a fishing ground development plan in accordance with the basic guidelines for fishing ground development prescribed by the Administrator of the Maritime Affairs and Fisheries, announce it without delay, and report it to the Administrator of the Maritime Affairs and Fisheries (Article 4 (1) of the Act). When the Do governor grants a fishing license in accordance with the provisions of Article 8 (1) of the Act, he shall do so within the scope of the fishing ground development plan provided for in Article 4 of the Act (Article 8 (2) of the Act).

In light of the legislative purpose of the Fisheries Act (Article 1), which intends to promote the development of fisheries and the democratization of fisheries by creating and protecting fishery resources and using waters comprehensively, Article 13 of the Act stipulates the priority order of those who are eligible to obtain a license preferentially to other persons when the Do governor establishes a plan for the use of fishing grounds and obtains approval from the head of the Fisheries Administration within the scope of such plan, and then grants a license under Article 8 of the Act. The priority order decision under Article 6 (1) through (3) of the Enforcement Decree of the Fisheries Act (amended by Presidential Decree No. 14508 of Dec. 31, 1994; hereinafter referred to as the "Enforcement Decree") shall not be construed as promising the disposal of a license in preference to other persons if there is no other reason not to grant a license to the person who is determined as priority. Article 6 (4) of the Enforcement Decree shall not be construed as having been applied to the administrative agency without delay.

The judgment below to the same purport is correct, and there is no error in the misapprehension of legal principles as alleged in the grounds of appeal.

As to the remaining grounds of appeal:

According to the reasoning of the judgment below, the court below found the following facts: although most of the fishing ground of this case is almost the same as that of the previous licensed fishery that the plaintiff acquired from the non-party 1, the fishery ground of this case is located within 1,000 meters from the coastline at full time, and the existing fishery right of this case expired on November 19, 1993, and there was no person whose validity period expires after January 1, 1994, which is possible to apply for the license of this case, and other facts as stated in its reasoning. According to the above facts, the court below held that the priority order of the fishery license of this case was the non-party 1, pursuant to Article 13 (4) 2 and 4 (3) of the Act, and the disposition of this case was made to the non-party 1, and despite the decision of the Do governor before the plaintiff as the priority order, the court below recognized that the plaintiff did not manage the existing licensed fishery ground of this case in good faith between the non-party 1 and the non-party 1, and the majority 194 basic guidelines.

However, Article 13(2) of the Act provides that the person whose fishery right expires at the fishing ground of the fishery at the time of the application (paragraph (1) shall be the priority order for a fishery license; Article 13(4) of the Act provides that if the waters to be licensed fall under any of the following subparagraphs, a license for a Class 1 fishery business shall be the first order for a fishing village fraternity which covers the area adjacent to the waters concerned, notwithstanding the provisions of paragraphs (1) through (3), and in the case of the West coast, it shall be within 1,000 meters from the coastline at full tide and it shall be deemed necessary for the coordination of fisheries (paragraph (2) 2); since the City/Do fisheries coordination committee deems that there is no person whose fishery right expires at the fishing ground of the fishery at the time of the application for a license, the plaintiff shall not be deemed to fall under the "person whose fishery right terminates at the time of application for a license" as provided in Article 13(2)1 of the Act, and therefore, it shall not be deemed that there is an error of misunderstanding of the legal principles as to the fishing village fishery committee in question.

However, according to the records, the defendant did not make the plaintiff's disposition of this case which rejected the plaintiff's application for fishery license as to the fishing ground of this case, but the non-party fishing village fraternity is not the priority holder, and considering the reasoning of the judgment below in light of the relevant statutes and the records, the plaintiff did not faithfully manage the fishing ground of the licensed fishery that the plaintiff acquired from the non-party 1, and the fishery division occurred between the non-party fishing village fraternity and the non-party fishing village fraternity. The plaintiff's decision of the court below that the disposition of this case was made within the discretionary authority within the scope of 1994, which decided that the plaintiff's joint management of fishery and waters that are easy to be developed by a majority of fishermen were not in conformity with the development plan for fishing ground of this case and the basic guidelines for the development of fishing ground of 194 by the Administrator of the Fisheries Agency. Thus, the judgment of the court below which held the non-party fishing village fraternity as the priority holder for the fishing ground of this case is erroneous, but it does not affect the decision.

The plaintiff's grounds of appeal are as follows: although the non-party fishing village fraternity is disqualified under Article 10 subparagraph 3 of the Act and Article 12 (1) of the Enforcement Decree of the Act, the court below did not err by misapprehending the legal principles as to the disqualified person under Article 10 subparagraph 3 of the Act and Article 12 (1) of the Enforcement Decree, or by misapprehending the legal principles as to the disqualified person under Article 12 (1) of the Enforcement Decree. However, the defendant did not consider the above facts in the disposition of this case as a ground for disposition, although the court below did not explain that there was no abuse of discretionary power or deviation from the disposition of this case, it is a result of misunderstanding that it is related to the legality of the disposition of this case, so long as the court below's judgment as to the defendant's grounds for disposition of this case is recognized to be legitimate, it cannot be viewed as a ground for illegality affecting the result of the judgment of the court below that criticizes the above grounds for disposition.

Therefore, the appeal is 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.

Justices Lee Don-hee (Presiding Justice)