[1] The meaning of an administrative disposition subject to appeal litigation

[2] Whether the head of a Si/Gun/autonomous Gu’s failure to reflect the waters whose validity period of a fishery right that can no longer be permitted for extension in the fishing ground development plan constitutes an administrative disposition subject to appeal litigation (negative)

[3] The elements of an action to confirm illegality of omission

[1] Articles 1 [general administrative disposition], 2, and 19 of the Administrative Litigation Act / [2] Articles 4(1), 8(1) and (2), and 14 (see current Article 16) of the former Fisheries Act (amended by Act No. 8377 of Apr. 11, 207), Article 2(2) of the Enforcement Decree of the Fisheries Act, Article 1 of the Administrative Litigation Act / [3] Articles 2 and 19 of the Administrative Litigation Act / [3] Articles 2 and 4 subparag. 3, and 36 of the Administrative Litigation Act

[1] Supreme Court Decision 97Nu6889 delivered on August 20, 199 (Gong199Ha, 2098), Supreme Court Decision 98Du18435 delivered on October 22, 199 (Gong1999Ha, 2429), Supreme Court Decision 2001Du10578 Delivered on May 17, 2002 (Gong2002Ha, 1411), Supreme Court Decision 2001Du6333 Delivered on December 10, 205 (203Sang, 384), Supreme Court Decision 2001Du2799 delivered on December 27, 2002 (Gong203, 5239Sang, 197Du94979 delivered on April 193, 193) 205.

Plaintiff 1 and three others (Attorney Cho Chang-soo, Counsel for the plaintiff-appellant)

Jinhae Market (Law Firm Indoor, Attorney Park Tae-sik et al., Counsel for defendant-appellant)

Busan High Court Decision 2004Nu2202 delivered on June 10, 2005

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate brief filed after the deadline).

1. As to the ground of appeal No. 1 by the plaintiffs

A. The disposition of an administrative agency, which is the subject of an appeal litigation, refers to, in principle, an act of an administrative agency under public law, which is an act directly related to the rights and obligations of the people, such as ordering the establishment of rights or the burden of obligations, or directly causing other legal effects with respect to a specific matter, and thus, an act that does not directly affect the legal status of the other party or the person concerned does not fall under such act (see Supreme Court Decision 97Nu6889 delivered on August 20,

In full view of the relevant provisions of Articles 4(1), 8(1) and (2), 14(1) and (2), 14(4) of the former Fisheries Act (amended by Act No. 8377 of Apr. 11, 2007), and Article 2(2) of the Enforcement Decree of the Fisheries Act, the head of a Si/Gun/autonomous Gu shall establish a fishing ground development plan for the comprehensive use and development of waters under his/her jurisdiction (hereinafter referred to as “development plan”) in advance and obtain approval from the Special Metropolitan City Mayor, Metropolitan City Mayor, or Do governor, and shall grant a fishing license to a person who intends to engage in fishing in his/her jurisdictional waters. However, a fishing license shall be granted within the scope of the development plan if a fishing right holder grants a fishing license, unless there are grounds falling under the proviso of Article 14(1), Article 13(7) and each subparagraph of Article 34(1) and the period of validity shall be extended within the scope of ten years from the expiration of the license term. Therefore, the period of a fishing right holder may not extend more than the first one year.

According to the facts duly established by the court below, plaintiffs 1, 2, and 3 held the first license and registration period with respect to each fishing ground listed in the table Nos. 1 through 4 of the court below's judgment, and the validity period of the first license expires on August 4, 198, and five-year fish farming license and extended on three occasions, and the validity period of the last license expires on August 3, 2003. The validity period of the last license expires on three occasions. The plaintiff 4 owned the first license and registration period on the fishing ground listed in the table No. 5 of the same table No. 5 and extended on three-year validity period on two occasions, and the first license period was extended on ten years after the expiration of ten-year period, and the validity period of the last license expired on September 17, 2003 (hereinafter referred to as "each of the plaintiffs' fishing rights", and the defendant did not directly reflect it in each of the development plan of this case and did not directly reflect it in each of the development plans of this case.

B. Meanwhile, a lawsuit seeking confirmation of illegality of an omission may be instituted only by a person who has filed a request for a disposition and has legal interest in seeking confirmation of illegality of an omission (Article 36 of the Administrative Litigation Act). In cases where a party did not file a request with an administrative agency to perform any administrative act, or a party does not have any legal or logical right to demand such administrative act, the lawsuit seeking confirmation of illegality of the omission cannot be deemed unlawful because it cannot be deemed that there is no standing to sue or illegal omission subject to an appeal litigation is illegal (see, e.g., Supreme Court Decisions 92Nu17099, Apr. 23, 1993; 97Nu17568, Dec. 7, 199).

However, there is no ground to view that there is a legal or logical right to request a holder of fishery right who is unable to obtain permission to extend the term of validity of the fishery right to reflect it in the development plan on the waters whose term of validity of the fishery right expires, and thus, the Defendant’s claim for the confirmation of illegality of omission cannot be said to have no standing to sue or there is no omission subject to appeal litigation on the development plan in 2003.

C. Although the reasoning of the judgment of the court below is somewhat inappropriate, the conclusion that the plaintiffs' claims based on the premise that the act of failing to comply with the development plan of this case constitutes an administrative disposition are unlawful is just, and there is no error of law such as misunderstanding of legal principles which affected the judgment, contrary to the allegations

2. As to the plaintiffs' grounds of appeal Nos. 2 and 3

The court below held that, even if the development plan for the use of the fishing ground of this case and the fact that the plaintiff et al. did not contain or reflect the matters concerning the fishery right of this case constitutes an administrative disposition or omission subject to appeal litigation, it cannot be deemed that there was a violation of the relevant Acts and subordinate statutes or an abuse of discretionary power or an infringement of the right to equality, etc. in light of the facts stated in the judgment, and as seen earlier, insofar as the ground of appeal No. 1 of appeal is without merit, the court below did not affect the conclusion of the judgment even if it erred in the misapprehension of the legal principles due

3. As to the remaining grounds of appeal by Plaintiffs 1, 2, and 3

The court below determined that the removal order disposition of this case based on Article 58 of the former Fisheries Act was lawful since the above plaintiff et al.'s fishery right of this case became extinct due to the expiration of each license.

In light of the relevant legal principles and records, the judgment of the court below is just and acceptable, and there is no error in the misapprehension of legal principles as alleged in the grounds of appeal.

4. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)