Whether an act of transferring fishery permission can be subject to revocation of a fraudulent act (negative)

Article 43 of the former Fisheries Act (wholly amended by Act No. 9626 of Apr. 22, 2009) provides that a person who intends to engage in permitted fisheries shall obtain permission from an administrative agency for each fishing vessel or fishing gear, and Article 48 of the same Act provides that a person who intends to engage in permitted fisheries shall obtain permission for each fishing vessel or fishing gear by applying mutatis mutandis Article 18, 19, 21, or 28 of the same Act shall not be subject to permission for fishery business, and that a person who is subject to permission for fishery business shall not be subject to permission for fishery business under the premise that the person who is subject to permission for fishery business is not subject to permission for fishery business under the premise that the person who is subject to permission for fishery business is not subject to permission for fishery business under Article 4 of the same Act, and that a person who is subject to permission for fishery business under the premise that the person who is subject to permission for fishery business under the previous Act is not subject to permission for fishery business under the premise that the transfer of fishery business is not subject to permission for fishery business permit.

Article 251 of the Civil Execution Act, Article 37 subparag. 4 (see current Article 35 subparag. 4), Article 43 (see current Article 41), and Article 48 (see current Article 49) of the former Fisheries Act (Amended by Act No. 9626, Apr. 22, 2009)

Supreme Court Decision 2004Da7873 Decided November 10, 2005 (Gong2005Ha, 1945) Supreme Court Order 2005Ma655 Decided March 2, 2006

[Judgment of the court below]

Defendant (Law Firm Down, Attorneys Doh Sang-hoon et al., Counsel for the defendant-appellant)

Daejeon High Court Decision 2009Na5122 Decided December 11, 2009

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

We examine the grounds of appeal.

Article 25 of the Civil Execution Act provides that the right of revocation of a fraudulent act shall be subject to compulsory execution by means of executing “other property rights” as provided in Article 251 of the Civil Execution Act because the right of revocation of a fishery permit may be freely transferred as a fraudulent act by revocation of a fraudulent act between an obligor and a beneficiary. Article 45 of the former Fisheries Act (wholly amended by Act No. 9626, Apr. 22, 2009; hereinafter “the Act”). Article 43 of the same Act provides that a person who intends to obtain a fishery permit shall not be subject to the transfer of the right of revocation of a fishery permit by means of the transfer of the right of revocation of a fishery permit by means of the transfer of the right of revocation of a fishery permit, etc. (see, e.g., Supreme Court Decisions 2004Ma285, May 17, 2004; 2004Da7873, Nov. 10, 2005). 208.

Nevertheless, the court below erred by misapprehending the legal principles as to transfer of the fishery permit in this case and revocation of fraudulent act under public law and thereby adversely affected the conclusion of the judgment, regardless of whether transfer procedures under substantive law have been established by paying attention to the fact that fishery permit is actually traded as property rights.

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)