[1] The nature of the provision on priority order and the scope of exercise of the fishery right owned by district cooperatives

[2] Whether a person in a position to enter into a preferential exercise of fishery right can exercise the fishery right without entering into the contract (negative)

[1] The provision of the priority order for the exercise of a fishery right owned by a district cooperative provides that when a fishery right holder concludes a contract for the exercise of a fishery right beyond the scope of the number of winners set forth in the fishing ground management covenant, if the applicants for a contract for the exercise of a fishery right competes with each other, the right to exercise a fishery right immediately to those who are set forth in the top priority order shall be granted the right to exercise the fishery right immediately, or only those who are set forth in the top priority order shall have the right to exercise the fishery right directly and independently. Thus, only the first priority holder shall not be deemed to have the right to exercise the fishery right exclusively, and it shall be deemed that the first priority holder has the right to execute a contract for the exercise of the fishery right exclusively, and it is necessary for the promotion of the common interests of the majority of the members of the fishing village fraternity who were excluded from the exercise of the fishery right to the fishing ground, and even if a contract for the exercise of a fishery right is concluded with a fishing village fraternity, the association may conclude a contract for the exercise of the fishery right with multiple applicants including the first priority until it.

[2] The right to exercise a fishery right under a contract for the exercise of the fishery right concluded with a fishing village fraternity is jointly exercised by members of the fishing village fraternity, so the conclusion of the contract for the exercise of the fishery right cannot be deemed null and void as it violates Article 37(2) of the Fisheries Act. Even if the contract for the exercise of the fishery right is null and void, a person who is in the position to enter into the contract for the exercise of the fishery right first with the fishing village fraternity shall enter into the contract for the exercise of the fishery right with the association to acquire the right to exercise the fishery right, and only if the contract for the exercise of the fishery right is not concluded

[1] Article 37 (2) of the Fisheries Act; Article 37 (1) of the Regulations on the License and Management of Fishing Grounds / [2] Article 37 (2) of the Fisheries Act; Article 37 (1) of the Rules on the License and Management of Fishing Grounds

Park Jong-chul et al. (Attorney Song Man-chul, Counsel for the plaintiff-appellant)

Mineyang Fisheries Cooperatives (Attorney Don-san et al., Counsel for the defendant-appellant)

Gwangju High Court Decision 94Na7293 delivered on April 21, 1995

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

We examine the Plaintiffs’ grounds of appeal.

1. On the first and second grounds for appeal

According to the reasoning of the judgment below, the court below concluded a contract with the defendant to exercise the fishery rights for the first, second, and third fishing grounds of this case and held that the plaintiffs engaged in fish farming business by 191 at that place. The defendant, around 192, entered into a contract to exercise the fishery rights with the plaintiffs and the third fishing ground of this case, and the first/2 and second fishing ground of this case are non-party Yellow Fishing Village Association (hereinafter referred to as the "non-party fishing Village Association") with the non-party Yellow Fishing Village Association (hereinafter referred to as the "non-party fishing Village Association"), and concluded a contract to exercise the fishery rights for the whole fishing grounds of this case and to promote the exclusive exercise of the fishery rights by the non-party fishing village fraternity as a whole, and concluded a contract to exercise the fishery rights of this case with the non-party 2, which is the premise that the non-party 1 and the non-party 1 and the non-party 2 were not entitled to exercise the fishery rights by the non-party 1 and the non-party 1 and the non-party 3 were not entitled to exercise the fishery rights.

In light of the relevant statutes and records, the above fact-finding and determination by the court below is just, and there is no error of law such as misunderstanding of legal principles, contradiction in the reasoning, and lack of reasoning as to the provision on priority of the exercise of fishery rights, such as the theory of lawsuit. The precedents cited by the theory of lawsuit shall be deemed to have the right to exercise the fishery rights to the top priority priority under the relevant statutes, such as the Fisheries Act, and only the first priority priority priority priority priority priority priority priority priority priority priority priority priority priority priority priority priority priority priority priority priority

2. On the fourth and fifth grounds for appeal

According to the reasoning of the judgment below, the court below held that since the right to exercise fishery under the contract of this case concluded by the defendant with the non-party fishing village fraternity is jointly exercised by the members of the non-party fishing village fraternity who are the members of the defendant's association, the conclusion of the contract of exercising fishery right violates Article 37 (2) of the Fisheries Act, and even if the contract of this case is null and void, the above contract of exercising fishery right cannot be deemed null and void, the person who is in the position of concluding the contract of exercising fishery right preferentially to acquire the right to exercise fishery right should enter into the contract of exercising fishery right with the defendant's association to acquire the right to exercise fishery right, and it cannot be viewed as having the right to exercise the fishery right as to the fishery of this case immediately because the contract of exercising

In light of the records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles, such as theory of lawsuit, etc.

3. On the third ground for appeal

In light of the records, the decision of the court below is just in holding that the above plaintiff's assertion in this case was not included in the plaintiff's assertion that he had the right to exercise the fishery right jointly with other union members, and there is no error of law such as omission of judgment or misunderstanding of legal principles, such as theory of lawsuit. There is no ground for appeal.

4. Therefore, 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.

Justices Shin Sung-sung (Presiding Justice)