A. Purport of the provisions of Article 27(1) and (2) of the Fisheries Act, and whether a license for fishery business for the top priority holder is a discretionary act to vest (negative)

(b) Scope of “public interest” under Article 20 (1) 2 of the Fisheries Act; and

A. Article 27(1) and (2) of the Fisheries Act provides that the Do governor shall establish a plan for the use of fishing grounds and obtain approval from the head of the Fisheries Administration, and then set the order of persons eligible to obtain a license preferentially to other persons when granting a fishery business license pursuant to Article 8 of the same Act within the scope of such plan. Thus, it cannot be interpreted that if the Do governor establishes a plan for the use of fishing grounds and obtains approval from the head of the Fisheries Administration, the Do governor shall not be obliged to grant a license

(b) "Public interest" in Article 20, Paragraph 1, Item 3 of the Fisheries Act refers to the public interest within a general meaning (or interests of many and unspecified persons), as well as to the public interest related to navigation, anchorage, mooring, mooring, and laying of subaque lines.

(a) Articles 27 (1) and 27 (2) (b) of the Fisheries Act;

[Defendant-Appellee] Attorney Park Jong-sung, Counsel for defendant-appellee

Jeonnam-do Governor (Attorney Cho Jong-hee et al., Counsel for defendant-appellant)

Gwangju High Court Decision 87Gu55 delivered on March 17, 1988

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

1. Judgment on the ground of appeal No. 1 by the Plaintiff’s attorney

The selection of evidence and the recognition of facts are subject to the exclusive authority of the fact-finding court unless they are contrary to logical and empirical rules, and if the relevant evidence is reviewed by comparing it with the records, it shall not be deemed that there is an error of law that misleads the facts against the rules of evidence without properly examining the process of the lower court’s selection of evidence and the process of fact-finding.

2. Determination on the ground of appeal No. 2

(1) In relation to the grounds of appeal No. 2, the facts duly established by the lower court are as follows.

On July 23, 1965, the Plaintiff: (a) obtained a 10-year period of validity from the Defendant with respect to the waters of 1,800,000 square meters in the ○○-gun, Yan-gun, Yan-gun, Yan-gun, Yan-gun, the almost almost identical fishing ground and water area; (b) obtained a 10-year period of validity from the Defendant to the period of July 22, 1985 with respect to the fishery right license; (c) the period of extension of the license expires on July 22, 1985; (d) Article 52 of the Fisheries Act and Article 60-4(1) of the Enforcement Decree of the Fisheries Act (hereinafter referred to as the "Decree") and Article 60-4(1) of the same Act (hereinafter referred to as the "Decree-gun-gun, Yan-gun, Yan-gun, △△△△-gun, the fishing ground of this case was changed to the upper 198-do.

(2) For the comprehensive use and development of waters under the jurisdiction of the Do governor, the Do governor shall establish a plan for the development of fishing ground under the conditions as prescribed by the Presidential Decree and obtain the approval of the Administrator of the Maritime Affairs and Fisheries (Paragraph (1)). The Do governor provides that "where the Do governor grants a license for fishery under the provisions of Article 8, it shall be within the scope of the plan for the development of fishing ground (Paragraph (2)." Further, Article 27 (1) of the Act provides that the priority order of the license for fishery shall be the first person who has experience in the same fishery as that of the applied for, and the first person who has experience in the same fishery (Paragraph (1) 2), the second person who is not under subparagraphs 1 and 2 (Article 3). Article 52 (2) provides that the priority order of the license for fishery under the provisions of Paragraph (1) shall be set up within the order of the plan for the development of fishing ground under the provisions of Paragraph (1) 1 and 2 of the Act.

(3) As above, we cannot accept the judgment below that criticizes that there was an error of law by misunderstanding the legal principles as to a license for fish farming business under the Fisheries Act.

3. Determination on the ground of appeal No. 3

(1) According to Article 16 of the Act, when it falls under Article 20 (1) 1 through 3 of the Act, that is, when it is necessary for the proliferation and protection of fishery resources (paragraph (1)), when it is required for national defense and other military purposes (paragraph (2)), when it is required for navigation, anchorage, mooring, laying of underwater cables, or when it is necessary for the public interest (paragraph (3) of Article 20 (1) 3 of the Act, "if it is necessary for the public interest" means "if it is necessary for the public interest" under Article 20 (1) 3 of the Act, it is reasonable to interpret that "public interest" means not only the public interest related to the navigation, anchorage, mooring, mooring, and laying of underwater cables, but also the public interest within a general meaning (for many unspecified persons).

(2) If the court below judges based on the facts duly established, the purpose of the Fisheries Act (Article 1 of the Act) is to promote the development of fisheries and the democratization of fisheries and protect fishery resources through the comprehensive use of the water surface, and the dispute is anticipated as the majority of all citizens of fishing grounds oppose the Plaintiff to a white-sea farming license for the Plaintiff. The Plaintiff was holding a b0-year white-sea license for a fishing ground, the term of validity of the license expires, but the fishery right is extinguished upon the expiration of the term of validity of the license. Accordingly, the Plaintiff’s refusal of a license is not deemed to exceed the limit of discretionary power or to abuse discretionary power, on the ground that there is a need for public interest to not grant a license for white-sea farming as to the fishing ground of this case’s case’s case’s case’s case’s case’s case’s case’s dispute is anticipated (the refusal

(3) In conclusion, there is no reason to argue that the lower court erred by misapprehending the legal doctrine on the scope of discretion to refuse to grant a license for fish farming business (However, as pointed out in the theory of lawsuit, the lower court erred in interpreting Article 16 of the Act as if it could refuse to grant a license for fish farming business even when it falls under Article 20 (1) 4 of the Act, but it is obvious that this does not affect the conclusion of the judgment).

4. Therefore, the plaintiff's appeal is dismissed, and the costs of appeal are assessed against the plaintiff who has lost. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Jae-sung (Presiding Justice)