[1] The legal status for the two-year period after the Fisheries Act was wholly amended by Act No. 4252 on August 1, 1990

[2] In order for a reclamation licensee to be recognized as a claim for damages under the former Public Waters Reclamation Act by the implementation of a reclamation project, whether the reclamation project is implemented after the reclamation license is publicly notified and the actual and practical damage to the holder of the customary fishery right should occur (affirmative)

[3] Whether the extinctive prescription provision under the Civil Act may apply mutatis mutandis to the claim for compensation on the ground that the customary fishing right has been lost due to the implementation of the reclamation project under the former Public Waters Reclamation Act (affirmative), and the period of extinctive prescription (=10 years), and the date from which the extinctive prescription begins (i.e.

[1] Article 2 subparag. 7 of the Fisheries Act amended by Act No. 4252 of Aug. 1, 1990 provides that "a person who has reported a fishery business under Article 44, and is recognized to the majority of the persons who have continuously engaged in catching and gathering marine animals and plants on the relevant waters before the joint fishery right is established, as prescribed by Presidential Decree." Accordingly, in order to newly recognize a fishery business as a right after the enforcement of the above Fisheries Act as a right, it is insufficient to simply mean that the fact that a person continuously engaged in catching and gathering marine animals and plants on the relevant public waters continues to engage in gathering and gathering marine animals and plants on the said public waters, and to register matters concerning the fishery business after the enforcement of the above Fisheries Act. However, Article 11 subparag. 2 of the Addenda of the same Act provides that "any person who is recognized to have a right within a fishing ground at the time of entry into force of this Act and fails to register it with the previous fishery right ledger within 2 years after the enforcement date of this Act shall be deemed to have no longer been registered with the fishery right."

[2] Article 17 of the former Public Waters Reclamation Act (wholly amended by Act No. 5911 of Feb. 8, 1999) provides that "a person who has obtained a reclamation license shall not commence construction work which may cause losses to a person who has the right to receive compensation unless compensation or facilities have been made under Article 16(1): Provided, That this shall not apply where the consent of the person who has the right to compensation has been obtained." However, compensation for losses is naturally required to cause special sacrifice to a private person in that it is a compensation for a special sacrifice that occurred to a private person due to an administrative action by public necessity, and the public notice of the reclamation license of public waters is not necessarily implemented and the project cannot be deemed to have been caused by the execution of the reclamation license. Thus, it is concluded that a claim for compensation under the Public Waters Reclamation Act has been made only when actual and realistic damages have occurred to a person who has the right to receive compensation after the public notice

[3] The extinctive prescription is a system that extinguishs a right when the right holder has been able to exercise the right for a certain period of time, and the non-exercise of the right continues for a considerable period of time, and so long as such right continues, it does not vary depending on whether the right is a claimant for compensation under the private law or a claimant for compensation for losses under the public law. Therefore, the extinctive prescription provision under the Civil Act may apply mutatis mutandis to the claim for compensation on the ground that the customary fishing right has been lost due to the implementation of reclamation projects under the Public Waters Reclamation Act, unless otherwise specified. In this case, the claim for compensation against the person who has the customary fishing right granted the reclamation license or the project implementer is a claim for monetary payment, and thus, the period of extinctive prescription is ten years pursuant to Article 162(1) of the Civil Act. In addition, the starting date of the extinctive prescription is reasonable, barring any special circumstance, to deem that the customary fishing right holder’s claim for compensation for losses occurred objectively resulting from the reclamation projects in this case as a natural, mountain, and marine fishing ground.

[1] Article 11 (2) of the former Fisheries Act (amended by Act No. 8377 of Apr. 11, 2007) (amended by Act No. 837 of Aug. 1, 1990) / [2] Article 16 of the former Public Waters Reclamation Act (amended by Act No. 5911 of Feb. 8, 199) (see current Article 32 of the Public Waters Management and Reclamation Act), Article 17 of the former Public Waters Reclamation Act (amended by Act No. 38 of Apr. 11, 2007), Article 11 (2) of the former Fisheries Act (amended by Act No. 8377 of Apr. 11, 200), Article 11 (3) of the former Public Waters Reclamation Act (amended by Act No. 5911 of Feb. 8, 199), Article 16 (2) of the former Public Waters Reclamation Act (amended by Act No. 3]

[1] Supreme Court Decision 9Da37382 delivered on May 26, 2000 (Gong2000Ha, 1504 delivered on December 27, 2001) Supreme Court Decision 99Da36532 delivered on December 27, 2001

Plaintiff (Law Firm Rate, Attorneys Kim Jong-chul et al., Counsel for the plaintiff-appellant)

Jeonnam-do Regional Land Expropriation Committee and one other (Law Firm Sejong, Attorneys Kang Shin-op et al., Counsel for the plaintiff-appellant)

Gwangju High Court Decision 97Gu1883 delivered on January 18, 2007

The judgment of the court below is reversed, and the case is remanded to Gwangju High Court.

The grounds of appeal (to the extent of supplement in case of supplement of reasons which have been submitted after the expiration of the period) are examined.

1. On the first and second grounds for appeal

A. The former Public Waters Reclamation Act (wholly amended by Act No. 3901 of Dec. 31, 1986; hereinafter referred to as the "former Public Waters Reclamation Act") which was in force at the time of the filing of the instant lawsuit is the same as the former Public Waters Reclamation Act (wholly amended by Act No. 5911 of Feb. 8, 199; hereinafter referred to as the "former Public Waters Reclamation Act"). As the Public Waters Reclamation Act was enacted "Act No. 10272 of Apr. 15, 2010", Article 16 of the former Enforcement Decree of the Public Waters Reclamation Act (wholly amended by Presidential Decree No. 16515 of Aug. 6, 199), Article 26 (1) of the former Enforcement Decree of the Public Waters Reclamation Act (wholly amended by Act No. 16515 of Feb. 6, 2009) provides for a person who has no jurisdiction over or has no right to file an appeal with the competent Land Expropriation Committee for public waters Act, etc.

The former Public Waters Reclamation Act was wholly amended by Act No. 5911 on February 8, 1999, which had been pending in the judgment of the court below (hereinafter referred to as the "former Public Waters Reclamation Act"). Article 20 of the amended Public Waters Reclamation Act provides that "any person who has obtained a reclamation license for public waters with a right under the provisions of Article 12 shall compensate for losses inflicted on the person who has the right, and where there is no agreement with the person who has the right to receive the compensation, the reclamation licensee or the person who has the right under the provisions of Article 12 may apply mutatis mutandis to the competent Land Expropriation Committee for a ruling. In this case, the provisions of Articles 73 through 75-2 of the former Land Expropriation Act shall apply mutatis mutandis to the objection, etc. against the ruling of the competent Land Expropriation Committee. According to Articles 74 and 75-2 of the former Land Expropriation Act, any person who is dissatisfied with the adjudication may file an objection against the Central Land Expropriation Committee (see Article 75-1 of the former Land Expropriation Act) within one month after being served with the original judgment.

Meanwhile, in light of the fact that Article 2 of the Addenda to the amended Public Waters Reclamation Act provides that “any disposition or other procedure conducted under the previous provisions at the time of the enforcement of this Act shall be deemed to have been conducted under the provisions of this Act”, it is reasonable to deem that not only the lawsuit under Article 75-2(1) of the former Land Expropriation Act, which is pending in the fact-finding court at the time of the enforcement of the amended Public Waters Reclamation Act, but also the lawsuit which is pending in the fact-finding court by filing an application for adjudication to

B. According to the reasoning of the judgment below and the records, the plaintiff (designated parties) and the designated parties (hereinafter referred to as "the plaintiff et al.") filed a lawsuit against the defendant's Committee on May 28, 1997 against the plaintiff on December 15, 1995 seeking revocation of the disposition of this case, and the plaintiff et al. filed a lawsuit against the defendant's committee on May 28, 1997 on the ground that the plaintiff et al. succeeded to the rights and obligations of the reclamation project of this case as the customary fishing right holder of the fishing ground of this case. The plaintiff et al. changed the right and obligation of the plaintiff et al. to the plaintiff et al. (hereinafter referred to as "the defendant committee") to the defendant Chonam-do Land Expropriation Corporation (hereinafter referred to as the "the defendant committee"). The plaintiff et al. succeeded to the right and obligation of the plaintiff et al. of this case as of November 17, 2006.

Examining these facts in light of the aforementioned legal principles, it is legitimate for the Plaintiff, etc. to file a lawsuit seeking the cancellation of the instant disposition against the Defendant Committee to be lawful pursuant to Article 16 of the former Public Waters Reclamation Act, and to add the Defendant’s construction to a co-defendant during the proceeding of the lawsuit, as well as to have the form of a necessary co-litigation pursuant to Article 20 of the amended Public Waters Reclamation Act and Article 75-2(2) of the former Land Expropriation Act. The Defendants’ grounds for appeal related thereto are without merit.

2. On the third ground for appeal

A. The lower court, comprehensively based on the evidence adopted, found the following facts: ① the Plaintiff et al. continued to reside in the coastal village, such as Jeonnam-gun, Dag-ri, Hoho, Hoho, Dog-ri, etc. before the implementation of the reclamation project in this case; and organized fishing village fraternities by natural village; and the Plaintiff et al. were entitled to seek compensation for losses incurred during the implementation of the reclamation project in accordance with the amended Fisheries Act, on the ground that the Plaintiff et al. did not have any obligation to claim compensation for losses incurred during the implementation of the reclamation project in accordance with the amended Fisheries Act, on the ground that the Plaintiff et al. did not have any such obligation to claim compensation for damages arising from the non-performance of the reclamation project in accordance with the provisions of the former Fisheries Act (wholly amended by Act No. 4252, Aug. 1, 199; 2). The Plaintiff et al. did not have any obligation to claim compensation for losses arising from the reclamation project in accordance with the amended Fisheries Act, as the above.

B. Article 40(1) of the former Fisheries Act provides that a holder of a fishery right for a common fishery business may not refuse the fishery business from a person who engages in the fishery business in accordance with the previous practice. The term "person who engages in the fishery business in a certain public waters by practice" refers to a person who catches or gathers marine animals or plants continuously on the public waters for a long time before the establishment of a joint fishery right for a certain public waters without a license and continues to do so and an ombudsman to the extent that it would be generally accepted by the majority of the people (see, e.g., Supreme Court Decisions 69Da173, Mar. 31, 1969; 93Da45701, Mar. 25, 1994).

However, Article 2 subparag. 7 of the amended Fisheries Act provides that "a person who has reported his/her fishery business under Article 44 and is recognized to have continuously captured and gathered marine animals and plants on the waters before the joint fishery right is established, and is registered in the fishery right register under the conditions as prescribed by the Presidential Decree among those who are recognized to the majority." Accordingly, in order to newly recognize a fishery business as a right after the amendment of the Fisheries Act, it is insufficient to simply refer to the fact that the majority of people have continuously captured and gathered marine animals and plants on the public waters, such as the previous one, and it is difficult to recognize the fact that they have continuously engaged in catching and gathering marine animals and plants on the public waters as a right. However, Article 11(2) of the Addenda of the same Act provides that "any person who is recognized as having a fishing practice within a fishing ground of the joint fishery business at the time this Act enters into force and fails to register it as a holder of the fishery right under the previous provisions within 2 years after the enforcement date of the Fisheries Act shall be deemed to have no longer been registered in the previous provisions on the fishery right register."

Meanwhile, Article 17 of the former Public Waters Reclamation Act provides that "no person who has obtained a reclamation license shall commence construction work until compensation or facilities have been made under the provisions of Article 16 (1) of the same Act: Provided, That this shall not apply in cases where consent is obtained from the person who has the right to such compensation: Provided, That compensation for losses is naturally required to make a special sacrifice to the private person in that it is a compensation for a special sacrifice that occurred to the private person due to an administrative action due to public necessity, and the public notice of the reclamation license of public waters cannot necessarily be said to have been executed and the loss is caused by the execution of the reclamation project after the public notice of the reclamation license. Therefore, it shall be deemed that a claim for compensation for losses under the Public Waters Reclamation Act has been made only when the customary holder of the right to use

Therefore, in order for a person with existing practice fishery right who has not registered in the original register of fishery right within the grace period under Article 11(2) of the Addenda of the amended Fisheries Act to be protected under the Public Waters Reclamation Act, at least the implementation of the reclamation project should be recognized as having caused substantial and practical damage due to the implementation of the reclamation project before the expiration of the grace period. However, the court below concluded that the plaintiff et al. was entitled to a claim for compensation due to the fact that the plaintiff et al. was engaged in the practice fishery at the time of the public notice of the reclamation license for the reclamation project of this case without examining and determining whether the actual and practical damage has occurred due to the implementation of the reclamation project of this case within the grace period of the above two-year grace period. Such judgment of the court below is erroneous in the misapprehension of the legal principles of compensation for damages under the Public Waters Reclamation Act and Article 11(2) of the Addenda

3. On the fourth ground for appeal

A. Since marine animals and plants taken and caught in the fishing ground of this case by the plaintiff et al. as a practice fishing are natural shellfishess and sea plants, in order to recognize the plaintiff et al.'s claim for compensation for damages due to the reclamation project of this case, the change in the fishery environment caused by the reclamation project of this case affects the growth of the nature of the shellfish and sea plants, and it should be recognized that the fishery ground of this case has lost its function as a natural shellfish and sea sweak fishing ground.

B. The lower court seems to have determined that the instant fishing ground was lost due to the instant reclamation project by adopting the result of the appraiser’s appraisal by the lower court (hereinafter “the result of the original appraisal”) as evidence, and based on this, that the Plaintiff et al. sustained losses.

However, according to the results of appraisal by the court below, without directly investigating the environmental change in the fishing ground of this case, ① With respect to the fishing ground environment, weather, chemical characteristics, sea water dynamics and the scope of proliferation of fresh water, the court below's appraiser's decision citing the contents of "the report on compensation for extinction of fishing rights due to the reclamation of the Southern Zone" (No. 13-4; hereinafter "third report") prepared around June 191 by the Korea Institute of Maritime Affairs and Fisheries, which was prepared by the Korea Institute of Maritime Affairs and Fisheries (hereinafter "the third report") as it is as it is. ② With respect to the damage to fishing ground and the loss of fishing capacity, the Korea Institute of Agricultural Promotion requested the Korea Institute of Fisheries and Fisheries Research and the Korea Institute of Maritime Affairs to investigate the damage to fishing ground of this case, which would have been affected by the 13th anniversary of 1986, and it is deemed that the Korea Institute of Maritime Affairs and Fisheries Association's temporary increase of damage to fishing ground of this case, including the 13th report on the reduction of m.

However, according to the evidence adopted by the court below, the first report, cited by the appraiser of the court below, "the compensation for the reclamation project of this case shall be limited to Kim Farming fishing ground because the damage is insignificant directly due to the results of the investigation and evaluation." However, as to the damage to the "Selle Shelle Sheet Shelle Sheet Sheet Sheet," the most adjacent to the tide embankment of this case, the "Sell Sheet Shee" is a multi-level examination to assess the environmental impact on the aquaculture because there are a large number of species and different habitats, so the period of investigation is too short," and the damage scope is also presumed to be limited to the extent of damage that "the impact on the sea of the Geim Farming industry on the water" is presumed to be limited to the bona fide zone, which is to be limited to the extent of the damage caused by the increase in the quantity of fish farming and the total quantity of fish farming in the middle of this case due to the increase in the quantity of fish farming and the decrease in the water flow of this case."

C. In light of the above circumstances, there is a question as to whether the appraisal by the original appraiser was conducted while properly grasping the contents of the first, second, and third reports on the fishing ground of this case without any logical explanation as to the extent of damage caused by the Kim Farming farm, such as whether the result of the appraisal by the original appraiser is reasonably conducted by a suitable expert for the appraisal of this case, rather than accepting the results of the original appraisal that is difficult to recognize its credibility, and whether there are reasonable grounds to support the results of the appraisal by the original appraiser, notwithstanding the above questions, a thorough examination should be conducted on whether there are reasonable grounds to support the results of the appraisal by the original appraiser.

Nevertheless, the court below, without doing so, concluded that the plaintiff et al. suffered a loss from the fishery ground of this case due to the reclamation project of this case according to the result of the appraisal of the court below. In so doing, the court below erred by failing to exhaust all necessary deliberations in violation of the rules of evidence as to the adoption of the appraisal result, and it has affected the conclusion of the judgment. The defendants' grounds for appeal pointing

4. On the fifth ground for appeal

A. The extinctive prescription is a system that extinguishs a right in which a right holder is able to exercise his/her right for a certain period despite the fact that the non-exercise of the right continues for a considerable period of time. As long as the right continues to be exercised for a considerable period of time, it does not vary depending on whether the claimant is a petitioner for compensation under the private law or the claimant for compensation under the public law. Therefore, the extinctive prescription provision under the Civil Act may apply mutatis mutandis to the claim for compensation on the ground that the customary fishery right has been lost due to the implementation of a reclamation project under the Public Waters Reclamation Act, unless otherwise specified. In this case, the claim for compensation against the person who has the customary fishery right or the project implementer is a claim for monetary payment, and thus, the period of extinctive prescription is ten years pursuant to Article 162(1) of the Civil Act. In addition, the starting date of the extinctive prescription is the time when the claim for compensation for losses occurred objectively and can exercise that right, i.e., when the plaintiff, etc., who has the customary fishery right has actually lost the fishing ground of this case as a nature and sea.

B. According to the reasoning of the judgment below and the record, even if Article 160 (Article 162) of the Civil Act on the extinctive prescription does not provide for the extinctive prescription or the period of exclusion of the claim for compensation under the former Land Expropriation Act or the former Public Waters Reclamation Act, and even if the statute of limitations applies, it can be seen that the right corresponding to the claim is ten years, and the prescription period has not elapsed since July 25, 1985, which is the date of the public notice of the reclamation license of this case, from July 25, 1985 to July 25, 1986, which is one year after the date when the project operator may file an application for a ruling to the competent Land Expropriation Committee pursuant to Article 25(2) of the former Land Expropriation Act, the extinctive prescription has run from July 25, 196, which is within ten years thereafter.

In light of the above legal principles, although the court below did not apply to the claim for compensation for losses under the Public Waters Reclamation Act, or even if the extinctive prescription is recognized, it erred by deeming that the initial date was the time when one year has elapsed since the date of the public notice of the reclamation license, it would be reasonable to deem that the reclamation project of this case was completed at least when the function of the fishing ground of this case was lost due to the reclamation project of this case as natural shellfish and seaweeds, but according to the reasoning of the court below, the reclamation project of this case was publicly notified on July 15, 1985 and the reclamation project of this case was commenced on October 30, 198, and the reclamation project of this case was completed on October 30, 198, and it is apparent that the lawsuit of this case was filed within 10 years from that time. Accordingly, the court below's conclusion that the plaintiff et al.'s claim for compensation for losses did not extinguish the extinctive prescription is justified. The defendants' ground for appeal pointing

5. Conclusion

Therefore, the judgment below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)