[1] The legal nature of the right to claim compensation for losses under Article 81 of the former Fisheries Act and the method of exercising such right (civil procedure)

[2] The method of exercising the right to claim compensation for losses under Article 16 of the Public Waters Reclamation Act (Administrative Litigation)

[3] Whether a permitted holder of fishery right under Article 41 of the former Fisheries Act constitutes "a person who has a right under Article 16 of the Public Waters Reclamation Act" (negative)

[1] Article 81 (1) 1 of the former Fisheries Act (amended by Act No. 5131 of Dec. 30, 1995) provides that a person who suffers losses due to a disposition such as restricting licensed fisheries due to a cause falling under subparagraphs 1 through 5 of Article 34 and subparagraph 8 of Article 35 (limited to the case falling under Article 34 (1) 1 through 5) of the former Fisheries Act, or due to an extension of the term of validity of a fishery license, may claim for compensation against the administrative agency. Even if the disposition of such fishery license falls under an administrative disposition, the losses due to such disposition are intrinsic contents of the fishery right, which is a right under the private law, and thus, the right to claim for compensation is not a right under the private law, but a right under the private law, and therefore, a person who intends to claim compensation due to a failure of the administrative agency to claim compensation for compensation or determination of the amount of compensation, and thus, a person who directly requests compensation from the administrative agency or the local government that received the permission for compensation for losses.

[2] The compensation for losses under Article 16 of the Public Waters Reclamation Act shall be filed by means of an administrative litigation against the Land Tribunal through the adjudication of the Land Tribunal where an agreement is not reached or it is impossible to reach an agreement.

[3] In light of the legislative purport and the contents of the Public Waters Reclamation Act, a person who holds a right under Article 16 (1) of the same Act refers to a person who holds a right under Article 6 of the same Act, and Article 6 of the same Act includes a person who holds a right to public waters under Article 5 (1) of the same Act includes a person who holds a right to fishery or a person who holds a right to fishery under Article 2 (7) of the Fisheries Act. Thus, it is clear that a person who holds a right to fishery under Article 41 of the former Fisheries Act (amended by Act No. 5131 of Dec. 30, 1995) is not a person who holds a right to fishery under Article 2 (7) of the same Act, and therefore, a person who holds a right to fishery under Article 41 of the former Fisheries Act defines a person who holds a right to fishery under Article 8 of the same Act as a person who holds a right to fishery under Article 6 (2) of the Public Waters Reclamation Act.

[1] Article 81 (1) 1 of the former Fisheries Act (amended by Act No. 5131 of Dec. 30, 1995) / [2] Article 16 of the Public Waters Reclamation Act, Article 26 of the Enforcement Decree of the Public Waters Reclamation Act / [3] Articles 6 and 16 of the Public Waters Reclamation Act, Article 41 of the former Fisheries Act (amended by Act No. 5131 of Dec. 30, 1995)

[1] Supreme Court Decision 90Da8978 delivered on April 26, 1991 (Gong1991, 1488), Supreme Court Decision 94Nu12050 delivered on January 26, 1996 (Gong1996Sang, 793). Supreme Court Decision 94Nu13848 delivered on July 26, 1996 (Gong1996Ha, 2677) / [2/3] Supreme Court Decision 96Da3838 delivered on October 10, 197 (Gong1997Ha, 3385)

Plaintiff

The Rural Development Corporation (Attorney Kim Jae-chul et al., Counsel for defendant-appellee)

Daejeon High Court Decision 97Na2793 delivered on September 5, 1997

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. On the first ground for appeal

Article 81(1)1 of the Fisheries Act (amended by Act No. 5131 of Dec. 30, 1995; hereinafter the same shall apply) provides that a person who suffers losses due to a disposition such as restricting permitted fisheries due to a cause falling under subparagraphs 1 through 5 of Article 34 and subparagraph 8 of Article 35 (limited to cases falling under Article 34(1)1 through 5) of the Act, or due to an extension of the term of validity of a fishery license, may claim compensation from an administrative agency. Thus, even if a disposition on such fishery license falls under an administrative disposition, such losses are essential contents of a fishery right, which is a right under the private law, and thus, the right to claim compensation is not a right under the private law, but a right under the private law. Accordingly, a person who intends to claim compensation on the ground that it falls under the requirements of Article 81(1)1 of the Act, and thus, a person who is an administrative agency or a local government that directly made a disposition on the license and fishery (see Supreme Court Decision 98Da164).

In addition, the compensation for losses under Article 16 of the Public Waters Reclamation Act shall be claimed by means of administrative litigation against the Land Tribunal through the adjudication of the Land Tribunal in cases where an agreement is not reached or it is impossible to reach an agreement (see, e.g., Supreme Court Decision 96Da3838, Oct. 10, 1997). However, the Public Waters Reclamation Act provides that a reclamation licensee for public waters with a right under Article 16(1) shall compensate for losses or install facilities to prevent such losses under the conditions as prescribed by the Presidential Decree. Article 6(1) provides that a person who has a right to the public waters shall be entitled to compensate for losses under Article 2 subparag. 7 of the Public Waters Reclamation Act or a person who has a right to fishery under Article 2 subparag. 6 of the Fisheries Act (see, e.g., Article 16(1) of the same Act). Thus, in light of the legislative purport and contents of the Public Waters Reclamation Act, a person who has a right to request compensation for losses under Article 6(2) of the Fisheries Act cannot be seen as an owner of fishery right.

The court below ordered the defendant to pay compensation for losses on the premise that the defendant can directly claim the compensation for losses of this case as a civil lawsuit, and it is reasonable to do so under the above legal principles, and there is no error of law in misunderstanding the legal principles as to the nature of the claim for compensation for losses. Thus, the argument in the ground of

The Supreme Court precedents, which set forth in the grounds of appeal, are inappropriate to be invoked in the instant case, because they differ in the matter.

2. On the second and third grounds for appeal

The court below held that the plaintiff was engaged in coastal fishing by using the fishing vessel of this case until the time when the non-party Y market obtained permission for coastal fishing and new fishing from the non-party YY market and announced the implementation of the development project, and that the plaintiff was calculated by applying the degree of operation and the rate of damage to the annual net production of the fishing vessel of this case (presumed value based on the use, size, etc. of fishing vessels) at the time of the implementation of the development project of this case, the court below's determination of facts and the recognition of facts or based on the facts acknowledged by the court below is just and acceptable. The ground of appeal on this point is without merit, contrary to what is alleged in the ground of appeal. The ground of appeal on this point is without merit, since there is an error of law of misunderstanding the facts against the rules of evidence or misunderstanding the legal principles as to the calculation of compensation and compensation for losses. It is nothing more than erroneous in the judgment of the court below on the premise that the judgment of this court is inconsistent with the facts acknowledged by the court below.

3. Therefore, the appeal shall be dismissed and all costs of appeal shall be assessed against the losing defendant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Jeong Jong-ho (Presiding Justice)