[업무구역확인청구의소][공2017하,1621]
[1] The case where the interest in confirmation is recognized in a lawsuit for confirmation
[2] Whether a fishing village fraternity has an interest in seeking confirmation of a business area from another fishing village fraternity in cases where a disposition such as refusing or revoking a fishery license is made on the grounds that a fishery right is not acquired by obtaining a license from the head of Si/Gun/Gu or that the head of Si/Gun/Gu overlaps with the business area of another fishing village fraternity (negative)
[1] The benefit of confirmation in a lawsuit for confirmation is recognized in cases where there is a dispute between the parties as to the present rights or legal status, and thereby, it is recognized that it is the most effective and appropriate means to determine the legal status of the plaintiff as a confirmation judgment to eliminate such apprehension and risk when the legal status of the plaintiff is unstable and dangerous
[2] If a person obtained a license from the head of Si/Gun/Gu before acquiring the fishery right, it cannot be deemed that the business area of the fishing village fraternity legally protected. Thus, even if there is room for dispute with other fishing village fraternities regarding the boundary of the business area to be licensed, such circumstance alone does not necessarily lead to any specific uncertainty or risk in the Plaintiff’s current rights or legal status.
In addition, in cases where a Mayor/head of a Gun/Gu, etc. refuses or revokes a fishery license on the grounds that it overlaps with another fishing village fraternity's business area, etc., seeking the revocation or invalidation confirmation of the disposition through an appeal litigation disputing the validity of an administrative disposition is a direct means to resolve the dispute. Therefore, it is difficult to deem that seeking confirmation of a business area against another fishing village fraternity under civil law is the most effective and appropriate means to eliminate the plaintiff's legal status's anxiety
[1] Article 250 of the Civil Procedure Act / [2] Article 250 of the Civil Procedure Act, Article 15 of the Fisheries Cooperatives Act, Articles 4(1), 5(1)3, and 5(2) of the Enforcement Decree of the Fisheries Cooperatives Act, Article 3(1)1 and 5 of the Enforcement Rule of the Fisheries Cooperatives Act, Article 2 subparag. 8 and 9 of the Fisheries Act, Article 16(1) and (2) of the Fisheries Act, Article 4 of the Administrative Litigation Act
[1] Supreme Court Decision 2009Da93299 Decided February 25, 2010
Nowon-gu fishing village fraternity (Attorneys Park Jong-ok et al., Counsel for the plaintiff-appellant)
Nowon-gu fishing village fraternity (Attorney Stabili-ho et al., Counsel for the plaintiff-appellant)
Gwangju High Court Decision 2015Na15435 decided February 3, 2017
The judgment of the court below is reversed, and the plaintiff's appeal is dismissed. All costs are assessed against the plaintiff.
1. As to the lawfulness of the instant lawsuit
The benefit of confirmation in a lawsuit for confirmation is recognized in cases where there is a dispute between the parties as to the present rights or legal status, and thereby, it is recognized that it is the most effective and appropriate means to determine the legal status of the plaintiff as a confirmation judgment in order to eliminate such apprehension and risk when the plaintiff's legal status is unstable and dangerous (see Supreme Court Decision 2009Da93299, Feb. 25, 2010, etc.).
According to the reasoning of the judgment below and the record, the Plaintiff, a fishing village fraternity affiliated with Dondo Fisheries Cooperatives, asserted that the west water surface of the direct line connecting the east point of 126°31 16.38 east 16.38 east 16.38 east 11 east 46.04572 east 126.33 east east 127.90 east east 126.90 east east 34.16 east 16 east 41.80780 east east east east 126.33 east east 126.38 east
According to statutes, the jurisdiction of a fishing village fraternity shall be determined by the articles of association of the fishing village fraternity (Article 15(1) of the Fisheries Cooperatives Act), a fishing village fraternity shall obtain authorization from the head of the competent Si/Gun/Gu after preparing its articles of association and undergoing a resolution at the inaugural general meeting (Article 4(1)3 of the Enforcement Decree of the Fisheries Cooperatives Act); and the articles of association of a fishing village fraternity shall include matters concerning the district (Article 5(1)3 of the Enforcement Decree of the same Act); and matters concerning the amendment of the articles of association of a fishing village fraternity shall be subject to authorization from the head of the competent Si/Gun/Gu (Article 5(2) of the Enforcement Decree of the same Act). Where the Preparatory Committee intends to obtain authorization for establishment of a fishing village fraternity, it shall submit an application for authorization for establishment of a fishing village fraternity along
On the other hand, a fishery right refers to the right to operate a fishery by obtaining a license from the head of a Si/Gun/Gu pursuant to Article 8 of the Fisheries Act (Article 2 subparag. 9 of the Fisheries Act), and a certain area of waters where a fishery business is conducted by obtaining a license as above is called a fishing ground (Article 2 subparag. 8 of the same Act). A fishery right shall be a real right, and the provisions concerning land under the Civil Act shall apply mutatis mutandis except as otherwise provided for in the Fisheries Act (Article 16(2) of the same Act), and it shall be acquired by registering in the fishery right registry (Article 1
Examining the contents of such statutes in light of the legal principles as seen earlier, it cannot be deemed that there exists a business area of a fishing village fraternity legally protected if the person obtained a license from the head of a Si/Gun/Gu before acquiring the fishery right. Therefore, even if there is room for dispute with other fishing village fraternities regarding the boundary of business areas to be licensed, such circumstance alone does not lead to any specific apprehension or risk of the Plaintiff’s current rights or legal status.
In addition, in cases where the head of a Si/Gun/Gu, etc. refuses or revokes a fishery license on the grounds that it overlaps with the business territory of another fishing village fraternity, etc., seeking the revocation or invalidity confirmation of such disposition by an appeal litigation disputing the validity of an administrative disposition is a direct means to resolve the dispute. Therefore, it is difficult to deem that the seeking confirmation of a business territory against another fishing village fraternity under civil law is the most effective and appropriate means to eliminate the Plaintiff’s anxiety and risks in legal status
Ultimately, the Plaintiff does not have any interest in seeking confirmation of the business area against the Defendant in order to eliminate anxietys or risks in the current rights or legal status. Therefore, the instant lawsuit is unlawful.
Nevertheless, the lower court, based on the circumstances indicated in its reasoning, deemed that the Plaintiff had a benefit to seek confirmation of the above business area against the Defendant, and further determined on the merits. In so doing, the lower court erred by misapprehending the legal doctrine on the benefit of confirmation, which is a legitimate requirement for litigation, thereby adversely affecting the conclusion
2. Conclusion
Therefore, without further proceeding to decide on the remaining grounds of appeal by the Defendant and the Plaintiff’s grounds of appeal, the judgment of the court below is reversed, and this case is sufficient for the court to directly render a judgment. As seen earlier, the lawsuit of this case shall be dismissed as it is unlawful and therefore, the judgment of the court of first instance with the same conclusion is reasonable. Therefore, the Plaintiff’s appeal is dismissed, and the total costs of the lawsuit shall be borne by the losing party.
Justices Park Sang-ok (Presiding Justice)