[1] Whether a public official in charge of filing a report on fisheries manufacturing business may be deemed to have filed a report solely on the ground that he/she failed to submit a report upon requesting documents that are not stipulated in relevant statutes

[2] Whether a legitimate report under the former Fisheries Act can be deemed to be a lawful report where a Kim processor reported a fishery manufacturing business under another person's name (negative)

[3] In a case where a fishery manufacturer outside a public project implementation zone loses his/her hinterland and becomes unable to conduct his/her business due to the implementation of the public project, whether the calculation of the amount of compensation for loss may be applied by applying the indirect compensation provision of the Enforcement Rule of the Public Loss Compensation

[4] Whether the period during which business performance has not been or significantly decreased during the last three years can be excluded from the evaluation of losses arising from the discontinuance of business (negative)

[1] Where a person who intends to engage in a fishery manufacturing business submits a report meeting the formal requirements, the report shall be deemed to have been filed at the time of the submission of the report, even if the public official in charge rejected the report without accepting the report on the grounds not stipulated in the relevant statutes. However, the mere fact that the public official in charge failed to submit the report on the grounds that he/she did not request any documents

[2] In light of Articles 49(1), 51(2), 32, 35 subparag. 6, and 97 subparag. 2 of the former Fisheries Act (amended by Act No. 5977 of Apr. 15, 1999), and Article 38(2) subparag. 2 of the former Enforcement Decree of the Fisheries Act (amended by Presidential Decree No. 1658 of Sept. 30, 1999), where the Kim processor has filed a report on fisheries manufacturing business under another person’s name, such report cannot be deemed a lawful report under the same Act, and the same applies to cases where the Kim processor is engaged in the same processing business under his/her name as the person under whose name the report was made, and thus, the Kim processor who has not filed a report on fisheries manufacturing business under his/her own name is not entitled to claim compensation for losses from discontinuance of business.

[3] The calculation of the amount of compensation may be applied by applying mutatis mutandis the provision on indirect compensation under the Enforcement Rule of the Public Compensation for Loss and Compensation Act to a person who is engaged in fishery manufacturing business after filing a report pursuant to the relevant Acts and subordinate statutes outside the public project implementation zone, on the ground that the person is unable to conduct his/her business due to the loss of his

[4] According to Article 24(1) and (3) 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. 1121, Oct. 15, 1997), the operating income of the abolished business shall be calculated on the basis of the arithmetic average of the operating income for the preceding three years of the pertinent business. The operating income of the abolished business shall not be calculated on the basis of only the remaining period of business, excluding the said three-year period, or on the basis of the business income for the preceding three-year period, on the basis of the annual average of the operating income for the pertinent

[1] Article 49 of the former Fisheries Act (amended by Act No. 5131 of Dec. 30, 1995); Articles 38(2) and 42 of the former Enforcement Decree of the Fisheries Act (amended by Presidential Decree No. 15241 of Dec. 31, 1996); / [2] Articles 32, 35 subparag. 6, 49(1) and 51(2) of the former Fisheries Act (amended by Act No. 5977 of Apr. 15, 199); Article 97 subparag. 2 of the former Fisheries Act (amended by Act No. 5131 of Dec. 30, 195); Article 38(2) and 42 of the former Enforcement Decree of the Fisheries Act / [2] Article 32, subparag. 6, 199, Article 39(1) of the former Enforcement Decree of the Fisheries Act (amended by Presidential Decree No. 15241 of Dec. 30, 1999)

[1] [3] Supreme Court Decision 98Da57419, 57426 delivered on December 24, 1999 (Gong2000Sang, 287) / [1] Supreme Court Decision 92Do1839 delivered on September 22, 1992 (Gong1992, 3046) Supreme Court Decision 97Nu6780 delivered on April 27, 199 (Gong199Sang, 1068) / [3] Supreme Court Decision 97Da56150 delivered on June 11, 199 (Gong199Ha, 1347) (Gong2000Da55720 delivered on March 27, 2001)

Plaintiff 1 (Attorney Kim Yong-sub, Counsel for the plaintiff-appellant)

Plaintiff 2 and four others (Attorney Lee Jae-soo, Counsel for the plaintiff-appellant)

Korea Land Corporation (Law Firm Han-gu, Attorney Song-chul et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 99Na1330 delivered on November 23, 2000

The part of the judgment of the court below against the defendant against the plaintiff 5 and the part against the defendant against the plaintiff 6 are reversed, and that part of the case is remanded to Seoul High Court. All of the plaintiff 1's appeals and the defendant's remaining appeals are dismissed. The costs of appeal between the plaintiff 1 and the defendant are assessed against the above plaintiff, and the costs of appeal between the plaintiff 2, 3, 4 and the defendant are assessed against the defendant.

1. Judgment on Plaintiff 1’s appeal

A. The court below found that although the plaintiff 1 completed the Kim Processing Business Report from December 17, 1991 until October 30, 1993, the term of validity expires and the plaintiff 1 did not report again after the expiration of the term of validity, the plaintiff 1 reported the Kim Processing Business as of August 25, 1995 until September 15, 1995, the term of validity until September 23, 1995. The court below held that even if the person who operates the fishery manufacturing business outside the public works implementation zone is unable to conduct the business due to the implementation of the public works project, if the fishery manufacturing business is not reported before the notice of the compensation plan is made, the compensation for the damage due to the implementation of the public works cannot be claimed, and it cannot be treated equally with the case where the plaintiff 1 recognized the validity of the report retroactively to the date of the actual report or the case where the compensation plan was reported before the public announcement of the compensation plan, contrary to what is alleged in the grounds of appeal.

B. Meanwhile, in cases where a person who intends to engage in a fishery manufacturing business submits a report on the fishery manufacturing business that satisfies the formal requirements, even if the public official in charge rejected and rejected the report on the ground that the report was not stipulated in the relevant statutes, it shall be deemed that the report was filed at the time of the submission (see Supreme Court Decision 98Da57419, 57426, Dec. 24, 1999). However, the fact that the public official in charge requested documents not stipulated in the relevant statutes and failed to submit the report cannot be deemed that the report was filed. Furthermore, even if the Defendant notified the Plaintiff 1 of the payment of production facilities and building compensation, and the competent tax office had the Plaintiff cancelled the business registration, such circumstance alone cannot be deemed that the Defendant should not be deemed to have paid compensation for the discontinuance of the business. In this regard, the lower court’s determination that the Defendant cannot claim compensation for losses for the closure of fishery business, contrary to what is alleged in the grounds of appeal.

2. Judgment on the defendant's appeal

A. As to the occurrence of liability for damages

(1) The court below held that the defendant should compensate for the losses incurred by the defendant, while implementing the industrial complex development project of this case, due to the loss of the hinterland of the plaintiff 2, the plaintiff 3, the plaintiff 4, and the plaintiff 5, who were engaged in the Kim Gam processing business outside the project district, due to the loss of the hinterland in which the plaintiff 2, the plaintiff 3, the plaintiff 4, and the plaintiff 5 had produced and supplied raw materials outside the project district, and there is no error in violation of the rules of evidence, as alleged in the grounds for appeal. Accordingly,

(2) The court below held that, around March 31, 1995, Plaintiff 2 submitted a report on fishery manufacturing business along with required documents to the public official in charge around October 1994, and the public official in charge rejected the report on the ground that the permission was not granted for wastewater discharge facilities or the site category of the factory site was not a site. However, it is reasonable to determine that the above plaintiffs' report should be deemed to have been filed at the time of filing the report, and there is no violation of the rules of evidence or misapprehension of the legal principles as alleged in the grounds for appeal. Accordingly, this part of the grounds for appeal cannot be accepted.

(3) The lower court determined that Plaintiff 6 was entitled to receive compensation for the closure of business as the actual operator of Kim Processing Business, on March 11, 1993, since Plaintiff 6 was engaged in Kim Processing Business jointly with Nonparty 1, and only reported fishery manufacturing business under the name of Nonparty 1, but he was transferred the right to claim compensation for losses that he would receive due to the instant industrial complex development project from Nonparty 1 on March 11, 1993, and he purchased Kim Processing Factory and the site on June 20, 1994.

However, in light of Articles 49(1), 51(2), 32, and 35 subparag. 6, and 97 subparag. 2 of the former Fisheries Act (amended by Act No. 5977 of Apr. 15, 199), and Article 38(2)2 of the former Enforcement Decree of the Fisheries Act (amended by Presidential Decree No. 16568 of Sept. 30, 199), where a person files a report on fisheries manufacturing business under another person’s name, such report cannot be deemed a legitimate report under the former Fisheries Act, and the same applies to cases where a person is engaged in a food processing business under his/her name as his/her name and the person who fails to file a report on his/her fishery manufacturing business under his/her own name.

Nevertheless, the court below erred by misapprehending the legal principles as to fishery manufacturers whose claim for compensation for damages is recognized, and thereby affecting the conclusion of the judgment, and the ground of appeal pointing this out has merit.

B. Regarding the scope of liability for damages

(1) The calculation of the amount of compensation may be applied by applying mutatis mutandis the provision on indirect compensation under the Enforcement Rule of the Public Compensation for Loss and Compensation for Loss of Public Works, in cases where a person who is engaged in a fishery manufacturing business after filing a report pursuant to the relevant laws and regulations outside a public project implementation zone is held unable to engage in the business due to the loss of the surrounding land due to the implementation of the public project (see Supreme Court Decision 98Da57419, 57426, Dec. 24, 199)

The court below determined the amount of compensation for losses against plaintiffs 3, 4, and 5 based on the average annual operating income of the above plaintiffs from 191 to 193, which amounted to the previous three years, based on Article 24 (3) of the Enforcement Rule of the Special Cases Concerning the Compensation for Loss (amended by Ordinance of the Ministry of Construction and Transportation No. 121 of October 15, 197) of the same Act, based on the beginning of individual compensation for losses against plaintiffs 3, 4, and 5, the defendant calculated the operating income based on the annual operating income of the above plaintiffs from 1991 to 193, which amounted to the previous three years. However, the above plaintiffs calculated the operating income of the plaintiff 3 based on the business income of the three years from 190 to 192, and only the business income of plaintiffs 4, and 5 based on the business income of the plaintiff 191 and February 192.

However, according to Article 24(1) and (3) of the Enforcement Rule of the Act on Special Cases Concerning Special Cases, operating income for the abolished business shall be calculated on the basis of the arithmetic average of operating income for the last three years of the business, and it is not possible to calculate the annual average operating income on the basis of the business performance for the remainder of the three years on the ground that there is no business performance or a significant decrease in the business performance during the three years, or on the basis of the business performance for the preceding three years.

Nevertheless, the court below erred by misapprehending the legal principles on the calculation of the amount of compensation for losses for the business of 193 when calculating the business profits of the above plaintiffs. However, the court below maintained the judgment of the court of first instance that calculated the operating profits of the above plaintiffs 3 and 4 from 1991 to 193 on the basis of the arithmetic average of the operating profits for 3 years from 1993, and additionally accepted 16,61,268 won and damages for delay after calculating the operating profits based on the arithmetic average of the operating profits for the remainder of the 1993, except for the above 193 years. Accordingly, the court below's error did not affect the judgment of the plaintiff 3 and 4, and affected only the judgment of the plaintiff 5, and therefore this part of the grounds for appeal is justified only for the plaintiff 5, and there is no ground for the remainder.

(2) In evaluating the sale loss amount of the facilities, etc. for plaintiffs 2, 3, 4, and 5, it is reasonable that the court below calculated the amount equivalent to 60% of the current value as the sale loss amount for the assets that cannot be sold such as structures, and for the assets that can be actually sold such as machinery and apparatus, it is difficult to calculate the sale price for the assets that cannot be sold. Therefore, it is reasonable that the court below calculated the above plaintiffs' compensation amount according to the appraiser 2's appraisal as the sale loss amount, and it is not erroneous in the misapprehension of legal principles as

3. Therefore, the part of the judgment of the court below ordering additional payment of the part against the defendant against the plaintiff 5 and the part against the defendant against the plaintiff 6 are reversed, and this part of the case is remanded to the court below, and all of the plaintiff 1's appeals and the defendant's remaining appeals are dismissed, and it is so decided as per Disposition by setting the

Justices Zwon (Presiding Justice)