[2] The method of calculating the amount of compensation for loss of the customary fishing right under Article 40 (1) of the former Fisheries Act

[2] The customary fishing right under Article 40 (1) of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990) is a right to exclusively use a certain public water surface, such as a fishing right recognized by a license for joint fishing, etc. under Articles 8 and 24 of the same Act, and to exclusively gather or gather marine animals and plants on such water surface, rather than a exclusive right to exclusively gather or gather marine animals and plants on such water surface. Thus, in assessing losses caused by the extinction of such right, it is not a right to exclusively use a certain public water surface and to exclusively gather or gather marine animals and plants on such water surface, and it is not a right to exclusively gather or gather marine animals and plants on such water surface, so the compensation method for losses cannot be applied to the case where the fishery right recognized by a license for joint fishing, etc. under Articles 8 and 24 of the same Act (amended by Act No. 4252 of Aug. 1, 199).

On the first ground for appeal

If a person who obtained a license for a reclamation project of public waters without compensation under Article 16(1) of the former Public Waters Reclamation Act (amended by Act No. 4252, Aug. 1, 1990; hereinafter the same) causes damage to a person who has the right to receive compensation, it constitutes a tort (see Supreme Court Decision 96Da3258, Mar. 28, 1997). Whether the claimant who suffered damage was entitled to receive compensation should be determined as at the time of implementation of the reclamation project of public waters, which is the time of the tort.

According to the reasoning of the judgment of the court below, the court below rejected the defendant's assertion that the designated parties in the attached Table 3 that the defendant selected the plaintiff (designated parties) 1 and the designated parties in the attached Table 4 that selected the plaintiff (designated parties) 2 as to the fishing ground of this case (hereinafter referred to as "the plaintiff designated parties in the attached Tables 3 and 4") had a customary fishing right as to the fishing ground of this case. However, the court below held that the defendant was liable to compensate for the damages caused by the reclamation works of this case executed by the defendant due to the loss of the above customary fishing right due to the reclamation works of this case. The court below rejected the defendant's assertion that the defendant had the customary fishing right as to the right to compensation as of the date the port facility area was designated and publicly announced. Such decision of the court below did not err in the misapprehension of legal principles as pointed out properly

On the second ground for appeal

A. In light of the records, the court below recognized that the practices of fishery by evidence vary each fishing village fraternity, but generally held 1 and 2 times a year from the village village fraternity or the meeting of the fishing village fraternity, and that the fishery right has been granted to each independent household when a certain period has elapsed after the separation or transfer of the fishery right, and there is no error in the misapprehension of legal principles as pointed out.

B. However, according to the reasoning of the judgment below, the court below acknowledged that the Plaintiff’s designated parties in the dispute had been engaged in the fishery of this case using tidelands, etc., such as a sloping, spawned, spawned, spawd, spawd, spawd and spad, etc., living in tidelands, etc. by using a spawd, spad, spad, spad and spad, etc. in accordance with the customary practices prior to the towing of the fishing ground of this case. The court below held that the Plaintiff’s designated parties in the dispute acquired the customary fishing right for the fishing ground of this case without any compensation to the Plaintiff’s designated parties in the dispute of this case on March 27, 190, by completely preventing the Plaintiff’s designated parties from entering the fishing ground of this case other than the Corporation from entering the fishing ground of this case, and by completely losing the function of the Plaintiff’s designated parties in the dispute of this case.

If a person who obtained a license for reclaiming public waters without compensation under Article 16(1) of the former Public Waters Reclamation Act causes damage to a person who has the right to receive compensation by implementing the reclamation project of public waters without compensation under Article 16(1) of the same Act, the damage suffered by the person entitled to receive compensation shall be deemed the amount equivalent to compensation (see Supreme Court en banc Decision 89Meu952, Jun. 12, 199).

However, it cannot be deemed that the Plaintiff’s representative in dispute was engaged in the above fishery business with a right to exclusively use the fishery of this case, and the fishery of this case was simply engaged in catching or gathering the above marine animals and plants. Thus, the practice fishery right held by the Plaintiff’s representative in dispute is not merely a right to exclusively use a certain public waters, such as a fishery right recognized by a license for joint fishery, etc. under Articles 8 and 24 of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990; hereinafter the same shall apply) and to gather or gather marine animals and plants upon entering a certain public waters, rather than a right to exclusively gather or gather marine animals and plants on the water without a disturbance of others.

Therefore, in assessing the loss caused by the extinguishment of such a right, the method of compensation cannot be applied by analogy to the case where the fishery right recognized by the license for joint fishing, etc. under Articles 8 and 24 of the former Fisheries Act, which is an exclusive right to gather or gather marine animals and plants exclusively on the surface of a certain public waters, is revoked.

Rather, as seen earlier, the Plaintiff’s representative has long been engaged in fisheries using natural fish and shellfish, such as booms, rocks, noosess, noosess, and sweaks, which inhabits tidelands in tidelands, etc. using a special license, permit, or report without a special permit or report in accordance with the customary practices, and using fishing gear such as sweeding and sweed, etc., so it can be deemed as similar to the reported fishery business type under Article 22 of the former Fisheries Act in substance. Therefore, it is reasonable to apply mutatis mutandis to assessing losses incurred by the Plaintiff’s representative in sweaks due to the extinction of such rights.

However, at the time of the execution of reclamation works in this case, the criteria for compensation for losses are not provided for in the former Fisheries Act. However, Article 25-2 (1) of the former Enforcement Rule of the Special Act on the Compensation for Public Loss (amended by Ordinance of the Ministry of Construction and Transportation No. 435 of Apr. 25, 198, amended by Ordinance of the Ministry of Construction and Transportation No. 493 of Oct. 28, 1991; hereinafter the same shall apply) of the former Enforcement Rule of the Special Act on the Compensation for Public Loss (amended by Ordinance of the Ministry of Construction and Transportation No. 493 of Oct. 28, 1991) provides that "where a person who runs a fishery business after obtaining permission or making a report on fisheries ceases his/her business or suspends his/her business due to the implementation of public projects, such as bank works and tide embankments, the amount of losses shall be appraised by applying this mutatis mutandis."

Nevertheless, the court below adopted the method of calculating the amount of damages for the cancellation, etc. of licensed fishery business in calculating the amount of damages of the Plaintiff-Appointeds. Thus, the court below erred by misapprehending the legal principles of calculating the amount of damages. Thus, the Defendant's appeal pointing out the misapprehension of legal principles is with merit in this regard.

Therefore, the part of the judgment of the court below against the defendant against the plaintiff Appointed is reversed, and this part of the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Seo Sung-sung (Presiding Justice)