Prohibiting fishing during closed seasons or banning illegal fishing gear are among the most common measures around the world to protect fishery resources and promote reasonable utilization of them. The Fisheries Law of the People's Republic of China (hereinafter referred to as the "Fisheries Law") is no exception with specific provisions in this aspect. However, many fishermen, believing they may get away with it, knowingly violate the law and sail out during closed seasons or use illegal fishing gear for their own selfish interests.

On October 18, 2018, Shanghai No.1 Intermediate People¡¯s Court announced a public judgment on an appeal case concerning a penalty imposed by a fishery administrative department. A fisherman by the surname of Xiao was fined RMB 50,000 yuan by the fishery administrative department for fishing during the close season and using fishing nets whose meshes are smaller than the minimum sizes as specified by the law. Shanghai No.1 Intermediate People¡¯s Court, finding that the facts of the decision on the administrative penalty are clear and the applicable law is correct, rejected Xiao's appeal for revocation of the decision on administrative penalty.

[Case Review]

On May 24, 2017, a day during the close season, the inspectors of the fishery administrative department discovered that several fishing vessels were fishing with double-anchor nets on the sea. They were about to get onboard to check up when the fishing vessels fled. Later, they were found stranded. The inspectors got on board and found that all the fishing vessels were engaged in fishing operations, and that they were stacked with wet nets, fishing gear and gains. During the inquiry, the fishermen on the fishing vessels involved refused to acknowledge that they were fishing during the close season and refused to cooperate with the law enforcement inspection. The appraisal department commissioned by the fishery administrative department determined that the sizes of the fishing gear on Xiao¡¯s boats did not conform to the relevant provisions of the Notice on the Minimum Mesh Sizes for Permissible and Transitional Fishing Gears of Marine Fishing (hereinafter referred to as the Notice).

In August 2017, the fishery administrative department made the decision on administrative penalty. It found that Xiao violated relevant regulations by fishing during the close season and using fishing nets with meshes smaller than the minimum sizes, and that the circumstances were particularly serious. Due to violation of Paragraph 1, Article 30 of the Fisheries Law and Article 4 (2) of the Notice, Xiao was fined RMB 50,000 yuan, and his four nets and eight anchors were also confiscated.

Xiao refused to accept the decision on administrative penalty, claiming that he sailed out to go home instead of going fishing. He appealed to the Court of First Instance for rescinding the decision of administrative penalty on the grounds that the facts of the decision on administrative penalty were not clear. The Court of First Instance rejected his request after trial. Not satisfied with the verdict, Xiao appealed to Shanghai No.1 Intermediate People¡¯s Court.

[Case Study]

After hearing the case, Shanghai No. 1 Intermediate People¡¯s Court held that Paragraph 1, Article 30 of the Fisheries Law states that it is prohibited to go fishing in prohibited fishing areas or during closed seasons, and that it is prohibited to use fishing nets with meshes smaller than the minimum prescribed sizes¡­ According to the Notice on the Adjustment of Shanghai¡¯s Summer Moratorium of Marine Fishing, which is issued by the Shanghai Municipal Agricultural Commission, the summer moratorium of marine fishing in the East China Sea waters under the jurisdiction of Shanghai is from 12:00 on May 1 to 12:00 on September 16...

In this case, based on the evidence provided by the fishery administration department, including the on-site records, pictures, logs, investigation and evidence collection of the fishing vessels involved, the coastal inspection by the fishery administration vessel, the fishing logs, the sales record of fishing gains, the inquiry records against Xiao and the inquiry records against Yu and other four outsiders, it can be proved that Xiao did go fishing on the day of capture and violate the provision that it is prohibited to go fishing during closed seasons.

As Xiao refused to cooperate with the law enforcement inspection after being captured, the fishery administration department entrusted a qualified third party to appraise the fishing gear and fishing nets and issue a report. According to the report, the meshes of the nets on Xiao¡¯s boat were smaller than the minimum sizes, violating relevant regulations.

Accordingly, Shanghai No.1 Intermediate People¡¯s Court decided that the facts of the decision on administrative penalty are clear and the applicable law is correct, so it rejected Xiao's appeal and maintained the first instance decision.

[Relevant Laws]

Fisheries Law of the People¡¯s Republic of China

Article 30 Such methods of destroying fishery resources as killing fish by explosion, with poison or with electricity, etc. are prohibited for fishing. It is prohibited to produce, sell or use prohibited fishing facilities. It is prohibited to go fishing in the prohibited fishing areas or during closed seasons. It is prohibited to use nets whose meshes are smaller than the minimum sizes as specified by the law. The undersized fish among the fishing gains shall not exceed the stipulated proportion. It is prohibited to sell illegally fished fishing gains in the prohibited fishing areas or during closed seasons.

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(By Wang Changpeng from Shanghai No.1 Intermediate People¡¯s Court)