He Shihai v Hainan Ocean and Fisheries Supervision Corps & Department of Ocean and Fisheries of Hainan Province in respect of fishery administrative penalty

Last update time:2019-10-20 20:18:32

He Shihai v Hainan Ocean and Fisheries Supervision Corps & Department of Ocean and Fisheries of Hainan Province in respect of fishery administrative penalty

 

Case No.: (2016) Q72 XC No.4

Cause of action: Dispute over fishery administrative penalty

Sea area involved: Sansha

Date: 14 December 2016

 

Gist

 

An administrative penalty imposed by the administrative organ shall be upheld according to law if the law enforcement act has factual and legal basis, the party subject to penalty is correct, the penalty amount corresponds to the damage caused by the illegal act, and the penalty is made according to legal procedures.

 

Applicable law

 

Article 69 of the Administrative Procedure Law of the People’s Republic of China

 

Basic facts

 

On 20 May 2016, the defendant, i.e. Hainan Ocean and Fisheries Supervision Corps, made the Fishery Administrative Penalty Decision (QYJCF [2015] No.006, hereinafter referred to as “No.006 Decision) with the main content as this: the ship Qiong Qiong Hai 09567” conducted fishing operations with dip nets and fishhooks in the sea areas of Nansha during 23 October 2015 and 13 December 2015, with a catch amount of 3,660 jin (equal to 1,830 kg) being sold directly at RMB91,500. The Master He Dacai did not perform masters duty according to the relevant regulations during the operation. During 12-15 November 2015 the ship even collected circa 2 tons of tridacna shells in waters near Meijiu Reef, but the shells had been released back to the sea. The said operations violated the provisions of Article 25 of the Fisheries Law of the Peoples Republic of China and paragraph 1, 4 & 7 of Article 23 of the Measures of the People's Republic of China for the Administration of Seaman in the Fishery Industry. According to Article 42 of the Fisheries Law of the Peoples Republic of China, paragraph 1 of Article 18 of the Regulation of the People's Republic of China on the Administration of Traffic Safety in Fishing Port Waters, and Article 44 of the Measures of the People's Republic of China for the Administration of Seaman in the Fishery Industry, penalties were imposed as bellow: 1. confiscated the illegal gain of RMB91,500; 2. imposed a fine of RMB50,000 on Qiong Qiong Hai 09567” and RMB20,000 on the Master He Dacai; 3. suspended the operation of Qiong Qiong Hai 09567” for six months (from 18 February 2015 to 8 May 2016) and withheld the masters competency certificate of He Dacai for six months (from 18 February 2015 to 8 May 2016).  

 

The claimant dissatisfied with the decision and applied with the Ocean and Fisheries Department (defendant) for administrative reconsideration. On 7 September 2016, the defendant made the Administrative Reconsideration Decision (QHYFJZ [2016] No.1) (hereinafter referred to as “No.1 Reconsideration Decision), upholding No.6 Decision made by the ocean and fisheries supervision corps. The claimant was not satisfied with the decision and hence lodged a lawsuit.

 

Huang Hongde was the holder of the ship registry certificate and certificate of ownership of fishing boats for Qiong Qiong Hai 09567”, and He Shihai was the co-owner of the ship. On 23 June 2015, the defendant, i.e. the Ocean and Fisheries Department, issued the No.029 special fishing license to the ship for operation in Nansha sea areas, which recorded that the name of the ship was Qiong Qiong Hai 09567”, the owner was Huang Hongde, and the ship was allowed to conduct gillnetting fishing from 1 January 2015 to 31 December 2015. The ship was actually operated by He Shihai, and Huang Hongde was not involved in the operation.   

 

The claimant requested to rescind No.006 Decision and No.1 Reconsideration Decision.         

 

Reasoning

 

Opinions of the effective judgment:

Ascertainment of facts: the fishing boat involved in the case was conducting fishing operation with dip nets and fishhooks in the sea areas of Nansha from 23 October 2015 to 13 December 2015, and the crew had sold the catch to a Cantonese fishing boat right at sea, due to which the ocean and fisheries supervision corps could not collect the relevant material evidence. However, according to the inquiry record dated 19 December 2015 by the Master He Dacai and the records taken on 20 January 2016 with the Master He Dacai, ship owner He Shihai, and crew Yang Keming, the ship Qiong Qiong Hai 09567” had caught 3660 jin fishes during the operation from 23 October 2015 to 13 December 2015 and acquired RMB91,500 for selling the catch. The inquiry records also showed that the ship had collected circa 2 tons of tridacna shells in waters near Mejiu Reef during 12-15 November 2015, but the shells had been released back to the sea. Therefore, No.006 Decision had ascertained the facts clearly. There was no legal basis for the allegation of the claimant that No.006 Decision only ascertained the facts based on inquiry records without material evidence, and the court therefore did not approve the allegation of the claimant.

 

Application of laws: according to Article 7 of the Regulations on the Administration of Fishery Production of Nansha, fishing boats operating in the sea areas of Nansha shall apply for a special fishing license for operation in the sea areas. Article 25 of the Fisheries Law of the Peoples Republic of China provides that entities and individuals engaging in fisheries must conduct their operations in accordance with their licenses in respect of the fishing method, location, time limit, quantity of fishing gear, and fishing quotas, and they must abide by the relevant regulations of the State on the protection of fishery resources. Large and medium size fishing boats shall keep a fishing log. In the subject case, the No.029 special fishing license for operation in Nansha sea areas for Qiong Qiong Hai 09567” prescribed that the boat was allowed to conduct gillnetting fishing operation. However, the ship was using dip nets and fishhooks in the operation from 23 October 2015 to 13 December 2015, which apparently violated the provision of the special license in respect of the fishing method. And the ship also did not keep a log book or fishing log. Therefore, the ocean and fisheries supervision corps had correctly applied the laws to confiscate the illegal gains of Qiong Qiong Hai 09567” and to impose penalties and suspend the operation of the ship for six months in accordance with Article 42 of the Fisheries Law of the Peoples Republic of China and paragraph 1 of Article 18 of the Regulation of the People's Republic of China on the Administration of Traffic Safety in Fishing Port Waters. Moreover, the fishing boat operated in Nansha sea areas during 23 October 2015 to 13 December 2015, which was beyond the time limit as set forth in the No.000078 fishing license. The court therefore dismissed the request of the claimant. Since the Master He Dacai did not perform the statutory duties of master during the operation in the South China Sea, it was appropriate for the supervision corps to impose a fine of RMB20,000 and withhold his master competency certificate for six months according to Article 44 of the Measures of the People's Republic of China for the Administration of Seaman in the Fishery Industry.

 

Penalty procedures: before making the No.006 Decision, the supervision corps had investigated and collected evidence, and informed the claimant of the facts, reasons and grounds of the administrative penalty, as well as the claimants rights to make statement and defense or apply for public hearing according to law. A public hearing for the penalty in dispute was held on 11 March 2016. Therefore, the ocean and fisheries supervision corps had made the No.006 Decision according to legal procedures.

 

In summary, No.006 Decision made by the ocean and fisheries supervision corps shall be upheld by the court because it had ascertained the facts clearly, applied the laws correctly, and followed the legal procedures. No.1 Reconsideration Decision made by the Ocean and Fisheries Department shall also be upheld since it had follow the legal procedures and made appropriate decision. The requests of the claimant had no factual or legal basis and shall be dismissed.

 

Judgment

 

The court overruled the litigation requests of the claimant He Shihai.