헌법재판소의 공유수면 해상경계 확정에 따른 어업면허처분의 법적 효력

Abstract

Disputes over boundary areas of local governments are increasing due to the revitalization of local autonomy and the strengthening of autonomy. In particular, the effect of the previous fishing license issued by the local government, which has lost its authority due to the decision of the Constitutional Court in the dispute over authority related to the determination of maritime boundaries, is a big problem. There is a debate over whether such a fishing license is valid or whether it should be regarded as invalid depending on the binding force of the Constitutional Court. If the Constitutional Court revokes the fishing license on the ground of infringement of autonomy or fails to confirm its invalidity, the binding force of the decision of the Constitutional Court shall not affect the fishing license. Therefore, the existing fishing license remains in effect until it is revoked by the competent authority. Even if the previous fishing license was issued by an unauthorized local government, it is wrong to view it as invalid. It is not easy for fishermen who have received a fishing license to accurately determine the whereabouts of their jurisdiction, and they have no choice but to trust the disposition issued and operate aquaculture until the Constitutional Court decides through adjudication of competence dispute. The fishing license issued by a local government (administrative agency) that has been judged to have jurisdiction may be a serious defect because the local government loses its jurisdiction due to a decision on a dispute over authority by the Constitutional Court, but it is unjust to see it as an obvious defect. In such a case, if a local government with recognized jurisdiction issues a new duplicate fishing license, a fishing dispute will inevitably arise. A cautious approach is required when issuing a new fishing license. If a local government recognized by the Constitutional Court does not faithfully conduct a basic investigation under the relevant statutes or arbitrarily issues duplicate fishing licenses within the same fishing license area based on this, the relevant license may be illegal. Decisions based on the determination of maritime boundaries can put fishermen in a very uncertain situation of their fishing licenses. Maritime boundaries of public waters and their jurisdictions are determined by the decision of the Constitutional Court on the competence dispute. With the decision of the Constitutional Court to confirm the jurisdiction of the maritime boundary, the relevant local government is effectively given new jurisdiction over that area. For the fishermen who have received the existing fishing license, this situation is in effect a change of area of the local government. Recognizing that all existing fishing licenses are invalid due to the determination of maritime boundaries can seriously infringe the property rights or freedom of business of fishermen, and violate the principle of trust protection for the existing fishing licenses. In this regard, there are no provisions in the Local Autonomy Act. In order to solve this problem, it is necessary to establish a new provision in Article 5 (3) of the Local Autonomy Act. The local government which takes over the area newly in accordance with the determination of the maritime boundary shall succeed to the affairs and property related to the previous fishing license.