Seoul High Court Decision 200Na14488 decided May 2, 200

Busan Metropolitan City Mayor (Attorney Yellow Jin-jin, Counsel for the defendant-appellant)

May 19, 2005

1. The plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The defendant's disposition not to grant permission to the plaintiffs on September 8, 2004 is revoked.

1. Details of the disposition;

The following facts are not disputed between the parties:

A. On January 19, 2002, Plaintiff Jeonsung acquired the ownership of the first new line of power-driven vessel of 59 tons on January 19, 2002, and thereafter, the period of permission on August 14, 2002 through August 13, 2007 of the same year is from August 14, 2002 to the period of August 14, 2007. Plaintiff Kim Sung-ro acquired the ownership of 77.54 tons of power-driven vessel of 77.54 tons in accordance with the former tonnage conversion method (85 tons in terms of the current tonnage) on December 10, 201, and thereafter, the period of permission on December 31, 2001 to December 30, 2006 from the Defendant, engaging in the fishery industry with each other’s towing fishing permit after obtaining from the Defendant.

B. On August 5, 2004, the Plaintiffs filed an application with the Defendant for the change of the type and name of the fishery from “large-sized low-speed fishing” to “large-sized low-speed fishing in the south Sea Zone,” and the method and name of the fishing gear to “large-sized low-speed fishing in the south Sea Zone,” on the grounds that the 59 tons of the vessel is 59 tons of the vessel and the 7rd oil is 55 tons of the vessel and that the 59 tons of the 59 tons of the vessel falls under the middle-class fishing network as stipulated in Article 41 of the Fisheries Act and Article 25 Subparag. 2 of the Enforcement Decree of the Fisheries Act.

C. Accordingly, the defendant questioning with the Ministry of Oceans and Fisheries on September 8, 2004 and received the answer. ① Pursuant to Article 7 of the Addenda of the former Enforcement Decree of the Fisheries Act (amended by Presidential Decree No. 13308, Feb. 18, 1991; hereinafter referred to as “each vessel of this case”), the defendant is "fishing vessels of not less than 50 tons and less than 80 tons measured in accordance with the previous provisions of the Ship Act pursuant to Article 3 of the Addenda of the amended Act (Act No. 3641)." Article 25 subparagraph 1 of the Enforcement Decree of the current Fisheries Act (amended by Presidential Decree No. 25 subparagraph 1 of the current Enforcement Decree of the Fisheries Act (amended by Presidential Decree No. 3641) with respect to the plaintiffs, the defendant shall be deemed to be a fishing vessel of not less than 60 tons and obtained a large-scale low-sized fishing vessel permit for each vessel of this case.

2. Whether the disposition is lawful;

A. The plaintiffs' assertion

The instant disposition is unlawful as it was based on the unconstitutional provision as follows.

(1) Article 7 of the Addenda of the instant case violates the principle of prohibition of discrimination, which is the content of the right to equality under Article 11 of the Constitution prohibiting discrimination in economic areas, and is unconstitutional against the freedom of choice of occupation under Article 15 of the Constitution.

(2) Article 17(1) [Attachment 12] of the Decree on the Protection of Marine Resources does not comply with the principle of prohibition of discrimination, which is the content of the right to equality under Article 11 of the Constitution prohibiting discrimination in economic areas, and is unconstitutional against the freedom of choice of occupation under Article 15 of the Constitution.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Determination as to the assertion of the above A. (1)

(A) Prior to the amendment on February 18, 191, Article 14-3 of the former Enforcement Decree of the Fisheries Act, the term “large-sized low-speed fishing” is a fishing with a power-driven vessel with a gross tonnage of at least 50 tons, which is an arrested using a low-speed net with a gross tonnage of at least 50 tons, and the medium-sized low-speed fishing with a gross tonnage of less than 80 tons was stipulated respectively as an arrested using a low-speed net with a power-driven vessel with a gross tonnage of less than 80 tons. As the amendment was made on February 18, 191, 191, Article 25 prescribed a large-sized low-speed fishing with a gross tonnage of at least 60 tons, and the gross tonnage of each of the relevant fishing businesses was adjusted by stipulating a gross tonnage of at least

(B) However, with the provision on transitional measures in Article 7 of the Addenda of this case, in the case of a fishing vessel of not less than 40 tons but less than 60 tons which is permitted under the previous provision, "60 tons" in Article 25 subparagraph 1 of the amended Enforcement Decree shall be deemed "40 tons" (paragraph (1)). Article 25 subparagraph 1 of the former Enforcement Decree of the Ship Act provides that a fishing vessel of not less than 50 tons and less than 80 tons measured under the previous provision of the Ship Act shall be deemed to be a fishing vessel of not less than 60 tons in applying Article 25 subparagraph 1 of the Enforcement Decree of the Ship Act at the time (paragraph (2). According to this provision, each of the vessels of this case shall be deemed to be a large-sized fishing vessel of not more than 60 tons in total when converting into the current tonnage, but it shall not be deemed to be related to a large-sized fishing vessel of not more than 60 tons in accordance with Article 7 (2) of the above Addenda.

(C) As above, the above provision that a vessel of less than 60 tons shall be deemed as 60 tons. However, although the fishing method of a large-sized medium-sized fishing vessel is similar to that of a medium-sized fishing vessel, there are limitations to the fixed number of vessels that can be permitted for each fishing, considering the fishing zone, fishery resources protection, etc., it seems that converting the existing large-sized fishing vessel of less than 60 tons into a medium-sized fishing vessel of less than 10 tons is not desirable in terms of policy and reality, and it seems inevitable to take policy measures to a certain extent because a large-sized fishing vessel of less than 60 tons cannot be considered as a uniform standard. Since each vessel of this case obtained a new large-sized fishing vessel permit after 201 or 202, in order to convert it into a low-sized fishing vessel of less than 60 tons, it is difficult to see that the aforementioned vessel is in violation of the principle of free fishing permit of more than 60 tons in consideration of the fact that it can not be seen as a new fishing vessel permit of more than 60 tons.

(D) Therefore, the above argument on this issue cannot be accepted.

(2) Determination as to the assertion of the above A. (2)

(A) Article 52(1) of the Fisheries Act provides that matters necessary for the following may be determined by the Presidential Decree for the purpose of fishery control, sanitary control, distribution order, and other coordination of fisheries; Article 52(3) of the said Act provides for the restriction or prohibition on operating areas, etc.; Article 52(1)3 of the said Act provides for the fixed number of permits for inshore fisheries; Article 17(1) [Attachment Table 12] of the Decree on the Protection of Marine Resources provides for the operation areas and the fixed number of permits by type of inshore fisheries; however, in the instant case, the Plaintiffs limit the fixed number of permits to those for underwater bottom fishing which the Plaintiffs want to obtain the permission of change to 37.

(B) The purport of such restrictions is to prevent excessive excessive fishing of fishery products and the aggravation of profitability due to excessive competition among those engaged in fisheries, thereby creating and protecting fishery resources, comprehensively using and managing waters, thereby enhancing the productivity of fisheries. In light of the legislative purport of each of the above statutes, the degree of restriction, etc., reasonable validity can be recognized. Therefore, it is difficult to deem that the aforementioned provision is unconstitutional, such as discrimination against a person who intends to obtain a new fishery permit, such as the Plaintiffs, without reasonable grounds, or excessive infringement of freedom of occupation.

(C) Therefore, the above assertion is without merit, and the instant disposition is lawful.

3. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Gunam-su (Presiding Judge) Kim Jong-Un