[2] In a case where the grounds for restrictions on fisheries under Article 34(1) of the former Fisheries Act are deemed necessary for national defense under subparagraph 3, and the requirements of “national defense and military projects”, which are one of the public works under subparagraph 5 of Article 34(1) of the same Act, are met simultaneously, whether the right to claim compensation for losses arises (negative in principle)

[2] Although Article 34(1)5 of the former Fisheries Act (wholly amended by Act No. 8377 of Apr. 11, 2007; hereinafter “former Fisheries Act”) provides a comprehensive provision on “when it is necessary for public works under Article 4 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects” due to the grounds for restrictions on fisheries under Article 34(1)5 of the former Fisheries Act (amended by Act No. 8377 of Apr. 11, 2007; hereinafter “former Fisheries Act”), it separately deals with “when there is a request from the Minister of National Defense as it is deemed necessary for national defense” under Article 34(1)3 of the former Fisheries Act and “when there is a request from the Minister of National Defense for compensation for losses.” In light of the purport of separately dealing with “where the grounds for restrictions on fisheries under Article 34(1)3 of the former Fisheries Act meet the requirements of subparagraph 3, one of the public works projects under subparagraph

1. As to the grounds of appeal Nos. 1, 2, and 3

A. Article 34(1) of the former Fisheries Act (wholly amended by Act No. 8377 of Apr. 11, 2007; hereinafter “former Fisheries Act”) provides that the head of a Si/Gun/autonomous Gu may restrict or suspend licensed fisheries, or impose restrictions on the mooring, departure, and entry of fishing vessels into and departure from the port in certain circumstances. The provision of Article 34(1) of the former Fisheries Act provides that “when necessary for the proliferation and protection of fishery resources (Article 1); “when necessary for military training or the protection of base of major armed forces” (Article 2); “when the Minister of National Defense deems it necessary for national defense and requests the provision of subparagraph 3; “when necessary for the navigation, anchorage, mooring, or laying of underwater cables” (Article 4); “when necessary for the navigation, mooring, mooring, or cutting of underwater cables; hereinafter “former Fisheries Act” (Article 4(1)5); “where the Minister of National Defense deems it necessary for the national defense and the provision of Article 34(2)3 of the former Enforcement Decree of the Fisheries Act as one of the National Fisheries Act.

Meanwhile, Article 81 (1) of the former Fisheries Act provides that a person who suffers a loss due to a disposition falling under any of the following subparagraphs may file a claim for compensation with the administrative agency which issued such disposition. The main text of subparagraph 1 provides that "limited to cases falling under Article 34 (1) 1 through 5 and subparagraph 8 of Article 35 (1) (limited to cases falling under Article 34 (1) 1 through 5) shall be subject to a disposition for licensed, permitted or reported fisheries, or the extension of the validity term of a fishery license under Article 14 is not permitted due to the pertinent reason" and the proviso of subparagraph 1 provides that "if the fishery business permitted or reported is restricted due to a reason falling under Article 34 (1) 1 through 3 (referring to cases where Article 45 (1) and (2) shall apply mutatis mutandis)" (hereinafter referred to as "the proviso of this case").

B. Even if a property right is permitted due to its social sustainability, there is a certain limit to the restriction on the property right, and the limit on the property right depends on the social function of the object of the property right, i.e., the exercise of the property right, which depends on the meaning of the subject of the fundamental right and the overall society. As the exercise of the property right has social relation and social function, more broad restriction by the legislators is allowed. Therefore, if the restriction on the property right is in conformity with the proportionality principle, such restriction is within the scope of the social limit that the property right should be accepted by the property right holder (see, e.g., Constitutional Court en banc Decision 2002Hun-Ba84, 89, 2003Hun-Ma678, 943, Sept. 29, 2005).

(1) In addition to the language, structure, and purport of the relevant provisions, (i) as follows, (ii) as the position to freely survive marine animals and plants in which a fishery permit holder or a report on fishery business is accepted, it is difficult to deem that the value of protection of property rights is firm as is the general property rights. (ii) Meanwhile, in light of the characteristics of the fishery right and the method of its exercise, it seems that the exercise of property rights seems to have great social relationship and social functions, and (iii) it seems that broad restriction is permitted by the legislators. (iv) Unlike the permitted or reported fishery business, it is difficult to view that the licensed or reported fishery business is in violation of the proviso to Article 5 of the Act as necessary for the acquisition of property rights, such as the need for conservation of fishery resources or national defense, and thus, it is difficult to say that the permitted or reported fishery business is in violation of the principle of proportion to the permitted or reported fishery business without compensation.

(2) In addition, Article 34(1)5 of the former Fisheries Act provides for a comprehensive provision on “when necessary for public works under Article 4 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects” as the grounds for restrictions on fisheries under this Article; however, in light of the purport of separately dealing with “when there is a request from the Minister of National Defense as deemed necessary for national defense” and “when there is a request from the Minister of National Defense for compensation for losses” under subparagraph 3 of Article 34(1) of the former Fisheries Act, insofar as the grounds for restrictions on fisheries under Article 34(1)3 of the former Fisheries Act meet the requirements of subparagraph 3, barring special circumstances, even if subparagraph 3 can concurrently satisfy the requirements of “national defense and military projects”, one of the public works under subparagraph 5, the claim for compensation for losses shall be first applied,

C. According to the reasoning of the lower judgment, on the premise that the instant proviso does not violate the Constitution, the lower court determined that the test shooting in this case constituted “other strategies and ex-ante agreements, as deemed necessary, and agreed with the heads of relevant administrative agencies” under Article 19 subparag. 5 of the former Enforcement Decree of the Fisheries Act, and that the requirements under Article 34(1)3 of the former Fisheries Act are satisfied. Furthermore, the lower court rejected the Plaintiffs’ assertion on the ground that the instant proviso did not occur since Article 34(1)3 and 5 of the former Fisheries Act is first applied, even if the operation control in this case can concurrently meet the requirements under Article 34(1)3 and 5 of the former Fisheries Act.

D. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine, the lower court’s determination is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on whether the proviso of this case is unconstitutional and its application

2. As to the grounds of appeal Nos. 4 and 5

After finding the facts as indicated in its reasoning, the lower court rejected all the Plaintiffs’ assertion that the instant operational control was established on the ground that a series of measures, such as notifying fishermen of the test shooting plan in the marine shooting range of this case notified by the relevant administrative agencies upon the request of the Defendant Agency for Defense Development, and providing guidance on the prohibition of adjacent navigation, etc., constituted a disposition of restriction on fisheries under Article 34(1) of the former Fisheries Act.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court’s aforementioned determination is justifiable, contrary to what is alleged in the grounds of appeal, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on administrative disposition

3. Conclusion

All appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Plaintiffs: omitted

Justices Lee In-bok (Presiding Justice)