2013No556 Violation of Fisheries Act

1. A;

2. B

3. C.

4. D;

5. E.

6. F;

7. G.

8. H;

9. I

10. J.

11. K stock company;

Defendants

Lee Jong-hun and Kim Tae-chul (Public trial)

Attorney AA, AB (Defendant D, E, F, G, H, I, J, and K Company)

(n)

Gwangju District Court Decision 2012Gohap731 Decided January 17, 2013

November 1, 2013

All appeals by the Defendants are dismissed.

1. The summary of the facts charged in the instant case and the decision of the court below are as follows: “The defendants, even though they were not allowed to operate beyond the boundaries of 107 degrees of Gyeongnam-do and Gyeongnam-do (hereinafter referred to as “the permitted fishing zone in this case, even if they were not allowed to operate outside of the permitted fishing zone from the boundary of Gyeongnam-do and Gyeongnam-do, to the 107 degrees extension line at the boundary of Gyeongbuk-do and Ulsan Metropolitan City and the intersection of coastline; hereinafter referred to as “the permitted fishing zone in this case”).”

In regard to this, the lower court found the Defendants guilty of all the charges of this case on the premise that the 1973 'the maritime boundary line on the topographical map of the National Land Geographic Information Institute was the boundary line on the 1973 'Gyeongnam-do and Jeonnam-do', which is the boundary line of the instant permitted operation area.

2. Summary of grounds for appeal;

A. Erroring of facts, misunderstanding of legal principles, violation of the principle of no punishment without law, etc. (section 1) concerning the boundary line of Gyeongnam-do and Do Jeonnam-do, which is the boundary line of the instant permitted fishing zone (

(1) Since there is no customs and legal conviction that recognized the maritime boundary line on the topographical map of the National Land Geographic Information Institute in 1973 as the border line of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the 1973, it cannot be deemed that the administrative customary law established the maritime boundary line on the topographical map of the 1973 National Land Geographic Information Institute with the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the 1973. In addition, there is a topographical map created by the Do of the Do of the Do of the Do of the Do of the 1920s which is the coast of the 1973 National Land Geographic Information Institute and the maritime boundary on the 19

In addition, on the topographical map made by the Land Survey Division of the Chosundo in 1920, the boundary line of the Gyeongnam-do and Jeonnam-do in this topographical map is not clearly indicated, so the boundary line of the Gyeongnam-do in this topographical map is not confirmed. No other statute exists that clearly define the boundary line of the Gyeongnam-do in the Gyeongnam-do and Jeonnam-do.

Ultimately, it cannot be deemed that there is a legal standard for the boundary line between Gyeongnam-do and Do, and there is no other standard to confirm the boundary line, and it cannot be said that the Defendants were working outside the instant permitted fishing zone beyond the boundary line.

(2) Even if there is an explicit legal standard on the boundary line of the Do in Gyeongnam-do and Jeonnam-do, the legal nature of the boundary line of the Do in Gyeongnam-do is not the boundary line of the administrative district under the jurisdiction of Gyeongnam-do and Gyeongnam-do. Thus, the boundary line of Gyeongnam-do in Gyeongnam-do is not determined based on the boundary line of the national land information source topographical map, but rather based on the maritime boundary line of the Do in Gyeongnam-do as amended by Presidential Decree No. 10945 of Nov. 13, 1982, Article 4 subparag. 4 [Attachment Table 4] of the Fishery Resources Protection Decree as amended by Presidential Decree No. 10945 of Nov. 13, 1982.

Even if the legal nature of the boundary line of the Do in Gyeongnam-do and Jeonnam-do is viewed as the boundary line of the administrative district under the jurisdiction of the Do, the boundary line of the Do in Gyeongnam-do is not different from the boundary line of the establishment of the Decree on the Protection of Marine Resources. The defendants do not operate a fishing outside the permitted area of this case, based on the boundary line of the new Ordinance on the Protection of Marine Resources.

(3) Therefore, even though the Defendants were engaged in operations beyond the maritime boundary line on the 1973 topographical map of the National Land Geographic Information Institute, they cannot be deemed to have been engaged in operations beyond the instant permitted operations area beyond the boundary line on the Do boundary line on the Gyeongnam-do and Jeonnam-do. Nevertheless, the lower court found the Defendants guilty of all the facts charged in the instant case, and thus, did not err by misapprehending the legal principles on the Do boundary line on the Gyeongnam-do and Jeonnam-do, which is the boundary line on the 1973 permitted operations

B. Chapter 2, such as misconception of facts as to intention and misunderstanding of legal principles, even if the maritime boundary line on the topographical map of the National Land Geographic Information Center in 1973 can be seen as the boundary line of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the 1973, the Defendants cannot be deemed to have had intentional intent

Defendants may not be punished in accordance with Article 16 of the Criminal Act, as there are justifiable grounds for misunderstanding that the sea in which fishing was conducted does not constitute a crime in the instant permitted fishing zone.

3. Judgment of the court below

A. As to the First Claim

(1) Article 98 Subparag. 8 of the Fisheries Act provides that "a person who violates an order for coordination, etc. of fisheries under Article 61" shall be punished, and Article 61(1) provides that "the administrative authority may order necessary matters for the control, etc. of fisheries," and Article 61(2) provides that "restriction or prohibition of the operation area for inshore fisheries" is "restricted or prohibited." In addition, Article 40(1) [Attachment 3] of the Enforcement Decree of the Fisheries Act delegated under Article 61(2) of the Fisheries Act provides that "the operation area and permitted number of inshore fisheries" shall be determined by type of inshore fisheries, etc., and the operation area for inshore fishing is divided into the operation area of the instant permitted area and the sea area in the Do of Jeonnam-do, and the operation area of the instant permitted area is divided into the area between Gyeongbuk-do and Ulsan Metropolitan City and the intersection area of the coastline of the coast of 107 degrees, respectively, between Gyeongnam-do and west-do."

In addition to the language and text of the above provision, there is no separate provision defining the Do boundary line of the Do of the Do of the Do of the Do of the Gyeongnam-do or its Enforcement Decree, and the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do, and the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the Do of the 20.

(2) Article 4(1) of the current Local Autonomy Act provides that "the name and jurisdiction of a local government shall be the same as that of the previous local government, the alteration of the name and jurisdiction of a local government, or the abolition, establishment, division or consolidation of a local government shall be determined by Act." However, in light of the history of the amendment of Article 4(1) of the Local Autonomy Act, the standard of "previous" as a basis for the determination of a local government's jurisdiction under the main sentence of Article 4(1) of the current Local Autonomy Act is going back in sequence to the provisions of the first enacted Act, and thus, the boundary of jurisdiction, including Article 4(1) of the Local Autonomy Act, is the original standard. In other words, the provisions on jurisdiction including Article 4(1) of the Local Autonomy Act, which existed before the enactment of the Republic of Korea Act, grant legal effect to the boundary of a local government's jurisdiction that existed before the enactment of the Republic of Korea Act. In addition, the boundaries of each local government's jurisdiction shall be determined by law or Presidential Decree based on administrative customs law, or not modified until now.

(3) Therefore, the boundary of the jurisdiction of the local government on public waters should be confirmed first according to the above criteria, which existed at the time of August 15, 1948, and it can be said that it is a matter of fact-finding confirming the existence and form of the maritime boundary at the time.

Therefore, the location of "Do Ordinance No. 111 of December 29, 1913, which set the jurisdiction of the Ministry of Health, Welfare, Do, and Gun as well as its jurisdiction, and the name and jurisdiction of the Do, and the name and jurisdiction of the Gun, under Article 11 of the Military Administration Act No. 21 of November 5, 1945, which set the jurisdiction of the Do as of August 15, 1948, with respect to the Do residents within the jurisdiction of the Republic of Korea as of August 15, 1948, the jurisdiction of the Korean local government can be said to have maintained the local administrative zone that existed at the time of sunset following the territorial local administrative zone of the Joseon Dynasty and the Japanese colonial era.

Pursuant to the General Do Survey Regulations in the Japanese colonial era [Enactment No. 1 of the Directive of the Land Investigation Bureau of Cho Jong-gun and the Large Three years (12 January 1914), the 7 years (1918), which was made by the Land Survey Division in the Japanese colonial era, the maritime boundary line was set by distinguishing between the Do and the Gun (the Constitutional Court Order 2005Hun-Ma2, July 30, 2009). According to the Constitutional Court Order 2005Hun-Ma2, etc., the Land Survey Division in the Japanese colonial group has produced several topographical maps after 1918, and some of them have not been marked properly). However, when the boundaries of the Do and the Do were demarcated for the first time, it appears that the boundary line was set on the basis of the central line of the mountain, lower, deep, and depth of the Do and the boundary line was set on the basis of natural conditions (the boundary of the State and the Gun).

Therefore, barring other special circumstances, the maritime boundary of the previous local government should be confirmed based on the nearest date to August 15, 1948, among the topographical maps made by the Land Survey Division of the Shipbuilding General. However, even if the topographical map manufactured by the Land Survey Division of the Shipbuilding General does not exist at present or the maritime boundary on the above topographical map is not indicated properly, it cannot be presented that there is a part irrelevant to the jurisdiction of the local government in light of the nature of the local government as the constituent elements of residents, areas, and autonomy. Since the topographical map made by the Land Survey Division of the Joseon General is indicated most of the national basic map issued by the National Land Geographic Information Board after the tidal wave, the maritime boundary of the previous local government should be determined based on the nearest date to August 15, 1948, and if the maritime boundary on the topographical map is not indicated clearly, it should be determined reasonably from the Constitutional Court Decision 2009Hun-Ga, 200 (see, 209Hun-Ga, 300).

(4) According to the evidence duly adopted and examined by the court below and the court below, in the topographical map produced by the Land Survey Division of the Chosundo in 1920, only some of the Gyeongnam-do and Jeonnam-do are indicated. On the other hand, in the topographical map published by the National Land Geographic Information Institute in 1973, the overall maritime boundary line of the Gyeongnam-do and Jeonnam-do is indicated as a whole, in the topographical map published by the National Land Geographic Information Institute in 1973, and in the national basic map of the Gyeongnam-do issued by the National Land Geographic Information Institute, the maritime boundary line of the Gyeongnam-do in the Gyeongnam-do and Jeonnam-do is various types of topographical map depending on the time of issuance, which is the most close to August 15, 1948.

(5) In light of the aforementioned legal principles, the Defendants’ boundary line on the 1920 Gagnam-do’s Gagnam-do’s Do and the 1920 Gagnam-do’s Gagnam-do’s Do boundary line on the 1920 Gagnam-do’s Gagnam-do’s Gagnam-do’s Do and other topographical maps on which the said boundary line is indicated are not confirmed. Thus, the Defendants’ 4-do Dogg-do’s Dog-do’s Dog-do boundary line on the 197 Gagnam-do’s Gagnam-do’s Dog-do’s 197 Gagnam-do’s Dogg-do’s Dogg-do’s Dog-do’s Dogg-do’s Dog-do’s Dog-do’s Dog-do’s 1973 Dog-do.

B. The following circumstances acknowledged by the evidence duly adopted and examined by the court below and the second state of Chapter 2: ① the Defendant’s fishery permit certificate explicitly stated the instant permitted operation area; the boundary line between Gyeongnam-do and Gyeongnam-do is deemed to have been formed on the basis of the maritime boundary line on the topographical map issued by Gyeongnam-do, 1973; and considering the fact that the Defendants were under control and punishment on the basis of the maritime boundary line on the topographical map issued by the National Land Geographic Information Board in 1973, much more than the Defendants were under control by the instant operation, the Defendants, who are fishery workers, were well aware of the maritime boundary line on the Do of Gyeongnam-do, Gyeongnam-do; ③ the Defendants, in the investigation agency of Gyeongnam-do, Gyeongnam-do, Gyeongnam-do, Gyeongnam-do, Gyeongnam-do, were directly located in the maritime boundary line on the Gyeongnam-do. Therefore, it is difficult to view the Defendants’ assertion to the effect that the Defendants did not have any specific reasons beyond the aforementioned.

C. As to the third proposal

(1) Article 16 of the Criminal Act provides that an act of misunderstanding that one's act does not constitute a crime under the Acts and subordinate statutes shall not be punishable only when there are justifiable grounds for misunderstanding. However, it is generally accepted that his act constitutes a crime, but it does not constitute a crime under the Acts and subordinate statutes in his own special circumstances, and where there exist justifiable grounds for misunderstanding, it shall not be punishable. Whether there exists a justifiable reason shall be determined depending on whether the act of misunderstanding is not aware of the illegality of one's act as a result of failure, even though there was a possibility that one's own act would have been aware of illegality if the act of misunderstanding was done with his intellectual ability, and the degree of efforts necessary for recognizing the illegality should be determined differently depending on the situation of the act of misunderstanding, the ability of the actor to recognize the identity of the person, and the social group to which the actor belongs (see, e.g., Supreme Court Decision 2005Do3717, Mar. 24, 2006).

(2) The record reveals that the Ministry of the Interior and Safety responded to the defendants' assertion, such as ① whether there is an explicit legal basis to distinguish the maritime boundaries between local governments, ② whether there is no legal basis to define the boundaries between local governments at sea, ② whether the topographical map issued by the National Land Information Service in 1973 is indicated with the maritime boundary, but there is no indication of the maritime boundary in the topographical map thereafter, ③ the National Land Geographic Information Service expressed that there is no indication of the maritime boundary, ③ the maritime boundary of the topographical map is merely an identification mark indicating that the maritime boundary of the topographical map is not related to the maritime boundary of the island and it is irrelevant to the jurisdiction of the local government.

(3) However, in light of the circumstances described in the preceding B, the Defendants appears to have been engaged in fishing operations in violation of the border line between Gyeongnam-do and Gyeongnam-do with the knowledge that they were fishing workers outside the instant permitted fishing zone. Even if the Defendants were to have mistakenly interpreted the circumstances described in the above (2) in favor of themselves, and thus, cannot be deemed as an error in the law with justifiable grounds. Moreover, even if considering the circumstances that the Defendants were not guilty of some of the fishermen, the Defendants’ assertion on this part is without merit.

4. Conclusion

Thus, the defendants' appeal is without merit and it is dismissed under Article 364 (4) of the Criminal Procedure Act.

The presiding judge and the fixed number of

Judges Kang Jin-woo

Judges Kim Gin-ju