1. The judgment below is reversed.

2. The defendant shall be punished by a fine of 500,000 won.

3. The above fine shall not be paid by the defendant.

1. Summary of grounds for appeal;

A. misunderstanding of facts and misunderstanding of legal principles as the Defendant is a customary fishing right holder, and the instant cultivating fishery is a justifiable act. 2) The Defendant mispers that the instant cultivating fishery is not illegal as a customary fishing right holder, and there are justifiable grounds for mistake, thereby not subject to punishment pursuant to Article 16 of the Criminal Act.

B. The sentence (one million won of fine) imposed by the lower court on the grounds of unreasonable sentencing is excessively unreasonable.

2. Determination

A. 1) Determination of misunderstanding of facts and misapprehension of legal principles on the assertion of customary fishing right is based on Article 40(1) of the former Fisheries Act (wholly amended by Act No. 4252, Aug. 1, 1990; hereinafter the same). Article 40(1) of the former Fisheries Act provides that “a fishery right holder of a joint fishing shall not refuse the entry of a person who engages in a fishery from the fishing place by its previous practice.” Since a fishery holder refers to “the capture of marine animals and plants from the fishing place of a joint fishing,” the cultivation business is already excluded from the definition of customary fishing right.

The practice fishery right is not limited to the right to gather and catch marine animals and plants by entering a certain public waters without being disturbed by others, rather than the exclusive right to gather and catch marine animals and plants exclusively on the water surface, such as the fishery right authorized by a license. There is no room for establishing a political fishery business to catch marine animals and plants by demarcated a certain water surface in order to artificially increase marine animals and plants, such as shellfishes, seaweeds, etc., or by using other facilities in a demarcated area of the water surface.

(B) In light of the above legal doctrine, the Defendant divided a certain area of waters into the instant case’s records, and then divided the said area of waters. In light of the records, the Defendant is entitled to divide the specific area of waters.