Whether a violation of the Fisheries Act is established where a fishing vessel with a permit for inshore fishing in another area is engaged in the operation of inshore fishing in an area excluded from the operation zone of inshore fishing (affirmative)

Article 52 (1) of the Fisheries Act provides that "the necessary matters concerning the following subparagraphs may be determined by Presidential Decree for the control, sanitary control, distribution order and other coordination of fisheries." Article 3 provides that "the restriction or prohibition on operation areas, time of fisheries, kinds of marine animals and plants that can be captured and collected" and Article 17 (1) provides that "the prescribed number of operation areas and permits of inshore fishing pursuant to Article 52 (1) 3 of the Act." Article 17 (1) provides that "the prescribed number of operation areas and permits of inshore fishing pursuant to Article 52 (1) 3 of the Act shall be as shown in attached Table 19." Article 52 (1) of the Fisheries Act provides that "the prescribed number of operation areas and permits of inshore fishing fishing shall be determined by the attached Table 19." Article 30 subparagraph 4 of the Act provides that the punishment regulations for those who operate fishing in violation of fishing operation areas under Article 17 (1) shall not be excluded from the offshore fishing operation areas of inshore fishing.

Article 52(1)3 and (2) of the Fisheries Act, Article 17(1) [Attached Table 19] and Article 30 subparag. 4 of the Decree on the Protection of Fishery Resources

Defendant 1 and three others

Defendants

Attorney Kim Dong-ju

Gwangju District Court Decision 98Dadan2439 delivered on December 24, 1998

Of the judgment below, the part on Defendant 2 shall be reversed.

Defendant 2 shall be punished by a fine of KRW 3,000,000.

When Defendant 2 fails to pay the above fine, the above Defendant shall be confined in a workhouse for the period calculated by converting 30,000 won into one day.

400,000 won shall be additionally collected from Defendant 2.

Of the facts charged in this case against Defendant 2, the charge that Defendant 2 violated the prohibition area of operation on January 21, 1998 is not guilty.

Defendant 1, 3, and 4's appeal is dismissed.

1. Summary of grounds for appeal;

The summary of the defendants' grounds for appeal shall be excluded from the application of Article 52 (1) 3 of the Fisheries Act (hereinafter referred to as the "Act") and Article 30 (4) and Article 17 (1) [Attachment 19] of the Decree on the Protection of Marine Resources (hereinafter referred to as the "Act"). The defendants' grounds for appeal under Article 27 (3) and (4) of the Act and Article 17 [Attachment 1] of the Enforcement Decree of the Fisheries Act (hereinafter referred to as the "Enforcement Decree"), Article 17 (1) [Attachment 1] of the Protection Decree, Article 16 [Attachment 7] and Article 26 of the Fishery Business and Fishing Management Rules (hereinafter referred to as the "Act"), and since the Ministry of Oceans and Fisheries may collect shellfish outside the permission of the same fishery in the south-do public waters, it is justified in the judgment of the court below that the defendants violated the legal principles of the Act on the Protection of Marine Products by escaping from the permission of the ship of this case as an operation area in the south-do.

2. Judgment of party members

A. Interpretation of the relevant penal provisions

Article 52(1) of the Act provides that “The following matters may be determined by the Presidential Decree for the control, sanitary control, distribution order, and other coordination of fisheries.” Article 52(1) provides that “The operation zone of operation, the time of fishery business, the kinds of marine animals and plants that can be caught and collected” under subparagraph 3 provides that “The protection order so delegated shall be as provided in attached Table 19 in accordance with Article 52(1)3 of the Act.” Article 17(1) provides that “The fixed number of operation zones and permits of inshore fishing shall be determined in accordance with Article 52(1)3 of the Act.” Article 52(1) provides that “The operation zone and permit quota of inshore fishing shall be determined in accordance with attached Table 19. The operation zone and permit quota of inshore fishing is not prescribed in the corresponding column, and Article 30(4) of the Act provides that any person engaged in fishing in violation of the operation zone of operation under Article 17(1) shall be excluded from the inshore fishing zone and offshore fishing zone shall be excluded from the inshore fishing zone.

B. Next, we examine the provisions cited by the Defendants.

Articles 41 through 45 of the Act provide that a person who intends to run a fishery business shall obtain a license for or report on each fishing vessel or fishing gear, etc., while Articles 8 through 40 of the Act provide that a person who intends to run a fishery business shall obtain a license for a fishing business in a fishing ground demarcated by certain waters. Article 27(3) and (4) of the Act, Article 17(1) [Attachment Table 1] of the Enforcement Decree of the Act, Articles 16 and 26 of the Regulations on the Management of Fishing Licenses and Fishing Grounds are the regulations on the use of a control vessel and the restriction thereof, the regulations on the methods of capturing and collecting communal fishing business, the regulations on the designation or approval of the use of a control vessel.

In other words, a fishery right holder with a license prescribed by the Act may use a control vessel (a fishing vessel necessary for controlling the fishing ground of the fishery by a licensed fishery right holder) with the designation of the competent authority. In this case, a control vessel is limited to a fishing vessel owned or leased by a fishery right holder (Article 27(1) of the Act). If a fishery right holder fails to have a control vessel in the fishing ground of the licensed fishery, a fishing vessel permitted for inshore fishery may be used with the approval of the competent authority (Article 27(3) of the Act). A fishery right holder with a license for using a control vessel shall not use the relevant control vessel for gathering marine animals and plants in the area of waters other than the designated fishing zone or the area approved under paragraph (3) of the same Article. However, this provision provides that a fishery right holder shall not use a fishing vessel permitted for inshore fishery as a control vessel with the approval of the competent authority (Article 27(4) of the Act). The meaning of the proviso of Article 27(4) of the Act can not be interpreted to the effect that the Defendants are permitted to permit and permitted for inshore fishery within the above fishing zone.

In addition, Article 17(1) of the Enforcement Decree of the Act, Articles 16 and 26(3) of the Regulations on the Management of Fishing Licenses and Fishing Grounds cited by the Defendants are merely a provision on the designation of a fishing vessel for which a license holder has obtained a license to use a fishing vessel with a license in the relevant fishing ground as a control vessel, the procedures for applying for approval, or the restriction and prohibition of a control vessel, and thus, the Defendants cannot serve as a separate ground for operating an inshore fishing vessel in the electric sea except the fishing ground

C. Whether the Defendants’ operation is legitimate

As seen above, in a case where a holder of fishery right who has obtained a license prescribed by the Act obtains approval for the use of a fishing vessel permitted for inshore fishing as a management vessel, it can be used within the relevant fishing ground. Therefore, according to the health stand as to whether the Defendants engaged in the instant fishing operation under such conditions, and the evidence duly examined by the court below, only the owner of fishery right was designated for the use of a management vessel only among men from among the fishing vessels used by the Defendants at the time of the above operation, and the owner of fishery right did not obtain designation for the use of a management vessel and the designation and approval for the use of a management vessel. Since the above operation area is recognized as public waters other than the fishing ground for which the above operation area was all licensed, the Defendants cannot be deemed to have lawfully

(d) Whether there is an error in law

According to the questionnaire made by the Minister of Oceans and Fisheries on December 12, 1997, which was compiled in the trial records, the answer to the "the method of gathering shellfish in the sea area under the jurisdiction of Jeonnam-do without a fixed number of inshore fishing permit" was presented to the effect that "it is possible to gather shellfish in addition to the same fishery permit if it is a public water in the jurisdiction of Jeonnam-do, in addition to the same fishery permit, in the case of public waters." Meanwhile, according to the questionnaire written by the Minister of Maritime Affairs and Fisheries on September 16, 1998, the question was presented to the effect that the phrase "the same fishery permit" in the above contents was written and responded to the purport that "the above fishery permit is excluded from the inshore fishing permit." Accordingly, even if the defendants interpreted the contents favorable to the defendants on December 12, 1997, and did not mislead the defendants about the remaining facts that the defendants did not commit the above act of operation, it cannot be said that there was a justifiable reason to believe that the defendants committed the above act of operation.

However, according to the records prepared by the head of the Gwangju District Prosecutors' Office, which was bound in the trial records, Defendant 2, around 07:00 on August 15, 1997, captured an amount equivalent to 400,000 won at the 40-year market price of 15 January 1998, using a type-net fishing gear at the 07:0 on August 15, 1997, the fact that the prosecutor was suspected of committing a non-prosecution. According to the above facts found, according to the above facts, Defendant 2 was found to have committed an act of violating the above Defendant's fishing prohibition area on the 21st of the same month, which was conducted six days after the above non-prosecution decision was made, and there was a justifiable ground for misunderstanding that the above Defendant was a mistake that the above Defendant was not guilty of a crime.

Therefore, the court below found Defendant guilty of the facts charged against the above Defendant on the ground that there is an error of law by misunderstanding the legal principles, which affected the conclusion of the judgment, and thus, the part of the judgment of the court below as to Defendant 2 cannot be reversed.

3. Conclusion

Therefore, since the appeal by Defendant 1, 3, and 4 is without merit, it is dismissed in accordance with Article 364(4) of the Criminal Procedure Act. Of the judgment below, the part against Defendant 2 is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act, and it is again decided as follows.

Criminal facts and summary of evidence

Except for deletion of Article 1-2 (b) from among the facts charged by the lower judgment, the same as those listed in each corresponding column of the lower judgment.

Application of Statutes

1. Article applicable to criminal facts;

Article 52 (1) 3 and (2) of the Fisheries Act, Article 30 (4) and Article 17 (1) [Attachment Table 19] of the Decree on the Protection of Fishery Resources

1. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Ratification;

Article 52 (4) of the Fisheries Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Judgment on the acquittal

Of the facts charged against Defendant 2, the summary of the facts charged as to Defendant 2’s violation of the operation prohibition zone on January 21, 1998 is that Defendant 2 violated the operation prohibition zone by capturing the amount of 220,000,000,000 won per vessel and the captain of the vessel and the 200,000,000,000,000 won per vessel from the 11:0 on January 21, 1998, the court below acquitted Defendant 2 pursuant to the former part of Article 325 of the Criminal Procedure Act, since this part of the facts charged does not constitute a crime on the grounds stated in the above reasons for reversal.

Judges Jeong Jong-ju (Presiding Judge) Kim Sung-soo