[2] Whether tort is established in a case where a public project operator who is obligated to compensate for losses incurred losses by executing a project without compensating for losses to a person who has no right to receive legal compensation (negative)

[3] The case holding that no person who obtained a permit for fishing ground fishing has a right to claim compensation for losses from a public project under the former Agricultural Community Modernization Promotion Act or the former Public Waters Reclamation Act

[2] If the executor of a public project obligated to compensate for losses, without implementing the procedure of compensation for losses, and without obtaining consent from the owner or interested person of the subject matter of the public project and causing actual damages to the owner, etc., the implementation of the public project shall be deemed unlawful and constitutes a tort against the owner, etc... However, in all cases where the property right is expropriated, used or restricted due to public necessity, the executor of the public project shall not compensate for the losses, but only where it is a special sacrifice exceeding social constraints, and the contents and limitations thereof are determined by law pursuant to Article 23(3) of the Constitution. Thus, if the project executor is not a person entitled to the compensation by each relevant Act in the implementation of the public project, if the project executor is not a person entitled to the compensation by each relevant Act, it shall not be deemed that a tort against the owner, etc. is established immediately

[3] The case holding that a person who obtained a permit for fishing ground fishing does not have a right to claim compensation for losses from a public project under the former Agricultural Community Modernization Promotion Act or the former Public Waters Reclamation Act

2. The plaintiff's claim for damages is dismissed.

3. Litigation costs shall be borne by the plaintiff.

The following facts are either disputed between the parties, or acknowledged in light of the whole purport of the pleadings as stated in the evidence Nos. 1, 2, 3-1, 2, 9-1, 2, and 11, and there is no counter-proof.

A. As part of the farmland improvement project as stipulated in the Agricultural Community Modernization Promotion Act (the above Act was repealed by Article 2 of the Addenda of the Farmland Improvement Association Act, Act No. 5077 of Dec. 29, 1995), the Defendant was a project implementer who performs the reclamation project of the public waters in the Cheongsung-gun, Cheongjin-gun Coastal Coastal Coastal Coastal Coastal Sea as part of the farmland improvement project. On March 30, 191, the Defendant obtained permission to reclaim the public waters pursuant to Article 29(1) of the Public Waters Reclamation Act (the above Act was amended by Act No. 5337 of Apr. 10, 1997; hereinafter the same shall apply) on June 21, 1991, after obtaining authorization of the implementation plan for the reclamation project of this case from the time of the implementation plan of the reclamation project of this case. The contents of the implementation plan are as follows:

(1) Business purposes: Creation of a foundation for rural development, such as farmland creation, and development of a Korean model agricultural complex.

(2) A business area: Masung-gun, a postal surface, a funeral surface, a funeral surface, a south-sea surface, and a marina map.

(3) Business area: 6,212ha, development area 5,812ha.

(4) Project period: Ten years from March 1991 to March 2001.

(5) The details of business: Facilities construction works, such as an external facility of a rainy complex and an drainage embankment.

B. On April 8, 191, the Plaintiff obtained a permit from the Cheongnam Do governor to operate a mar-type fishing vessel (limited to inshore fishing under Article 41(1) of the current Fisheries Act and Article 25 subparag. 12 of the Enforcement Decree of the same Act) with respect to the mar-type fishing vessel vessels owned by the Plaintiff on April 8, 191, and engaged in the mar-type fishing under the said permit by using the Plaintiff’s place of residence as the base for the mar-type fishing vessel located in the Gyeonggi Sungsung-gun, the mar-type fishing vessel located in the Plaintiff’s dwelling.

2. The plaintiff's assertion

The plaintiff asserts that the reclamation work of this case executed by the defendant was in violation of Article 17 of the Public Waters Reclamation Act, etc. that "the execution of the reclamation work of this case shall not commence unless compensation is made" and "the construction work of this case shall not commence unless compensation is made," and the defendant is liable to compensate for losses suffered by the plaintiff pursuant to the provisions of the Agricultural Community Modernization Promotion Act or the Public Waters Reclamation Act, or the defendant shall not compensate for losses incurred by the plaintiff pursuant to the plaintiff's application without compensating the plaintiff for damages caused by the plaintiff's permitted fishery right."

3. Determination

A. Whether the claim for compensation for losses is lawful

First of all, the Rearrangement of Agricultural and Fishing Villages Act enacted by Act No. 4823 of Dec. 22, 1994 provides that the procedures for compensation for losses shall apply mutatis mutandis to farmland improvement projects under the Agricultural and Fishing Villages Modernization Promotion Act (Article 6(1) of the Addenda), and the Land Expropriation Act shall apply mutatis mutandis to compensation for losses arising from such projects (Article 91(6). Meanwhile, Article 16 of the Public Waters Reclamation Act provides that a person who has a right to public waters under Article 6 of the Public Waters Reclamation Act shall consult with a person who has a license for reclamation of public waters, and if an agreement is not reached or cannot be reached, an application for adjudication may be filed with the Land Expropriation Committee pursuant to Article 30 of the Enforcement Decree of the same Act. Accordingly, each procedure for compensation for losses shall be separately provided by the plaintiff, on the grounds as alleged in the above. If an objection is raised, the plaintiff may seek revocation of the decision of the Land Expropriation Committee, which is a disposition in public law, and may not be directly claimed against the defendant.

As to this, the plaintiff did not recognize the right to file an application for adjudication against the recipient, such as the plaintiff under the current Land Expropriation Act, but only the right to file an application for adjudication against the business operator is recognized. The plaintiff filed a claim for adjudication against the defendant who is a business operator on November 7, 1995 in accordance with the above procedure pursuant to Article 25-3 (1) of the Land Expropriation Act, but the defendant returned the claim for adjudication on the ground that the plaintiff does not fall under the "person entitled to the compensation" under Article 16 of the Public Waters Reclamation Act. Thus, the plaintiff who has no other means of remedy

However, as alleged by the plaintiff, the defendant did not compensate for the plaintiff's permitted fishery right and carried out the reclamation work of this case, and even if the plaintiff did not comply with the plaintiff's application for adjudication, it is separate from the civil court's claim for damages due to tort, and the above circumstance alone does not accept the plaintiff's claim for damages due to a direct civil lawsuit against the defendant who is the project operator. Thus, the plaintiff's claim for damages of this case is unlawful.

B. Whether tort liability is established

Then, if a public project operator, who is obligated to compensate for damages due to the plaintiff's illegal acts, did not implement the procedure for compensation for damages, and performed a public project without obtaining consent from the owner or related person of the subject matter of expropriation, and actually inflicted damages on the owner, etc., the implementation of the public project shall be deemed to constitute a tort against the owner, etc. by unlawful act. However, in the event that the expropriation, use, or restriction of property rights due to public necessity, the executor of the public project does not have to compensate for the losses, but only if it is a special sacrifice beyond social constraints, and the contents and limitation thereof are determined by law pursuant to Article 23 (3) of the Constitution. Thus, if the plaintiff is not a person entitled to receive compensation pursuant to each relevant Act in the implementation of the farmland improvement project or the public waters reclamation project in this case, it cannot be said that the defendant committed a tort against the plaintiff immediately because the plaintiff performed the project without compensation. Accordingly, it should be examined whether the plaintiff is a person entitled to receive compensation by the relevant Act in the implementation of the farmland improvement project in this case or the

Article 156 of the Agricultural Community Modernization Promotion Act provides that the executor of the farmland improvement project or the farm village housing improvement project shall pay reasonable compensation to the person interested in the project, and Article 6 of the same Act provides that the above person interested shall include the holder of fishery right and the holder of fishery right under subparagraph 7 of Article 2 of the Fisheries Act. Meanwhile, the Public Waters Reclamation Act provides that the person who has the right under Article 16 (1) shall compensate the person who has the right or install facilities to prevent the loss under the conditions as prescribed by the Presidential Decree, and Article 6 provides that the person who has the right to the public waters under subparagraph 7 of Article 2 of the Fisheries Act shall be the holder of fishery right or the holder of fishery right under subparagraph 7 of Article 2 of the Fisheries Act shall be the holder of fishery right under Article 2 of the same Act, and therefore, the person who has the right to the public waters under subparagraph 7 of the same Article shall not be the owner of fishery right under Article 2 of the Fisheries Act and the person who has the right to the public waters under subparagraph 7 of the same Article shall not be the plaintiff.

Therefore, the Plaintiff’s claim for compensation for losses under the Agricultural Community Modernization Promotion Act or the Public Waters Reclamation Act is not recognized, and even under other Acts and subordinate statutes, since there is no evidence to view that the Plaintiff had a claim for compensation for losses against the Defendant, it cannot be deemed unlawful even if the Defendant performed the instant reclamation work without compensating the Plaintiff. Accordingly, the Plaintiff’s claim that the Defendant’s implementation of the instant reclamation work constitutes a tort against the Plaintiff is without merit without further examining the remainder of the point.

4. Conclusion

Therefore, the plaintiff's claim for compensation of this case shall be dismissed, and the claim for compensation of damages shall be dismissed. It is so decided as per Disposition.

Judges Eathere Co., Ltd. (Presiding Judge)