[1] The case holding that the non-permission disposition on the extension of the license period for the fish farming business of inland waters is due to the consent of the Korea Water Resources Corporation, which is an inland water manager, for the preservation of the water quality of the Cheongju, and it does not constitute a case of public works under Article 3 (2) of the Land Expropriation Act, on the ground that it is not due to the necessity of wide-area waterworks business in the Cheongju Dam system

[2] In the case of an application for an extension of the license period for inland fish farming, whether the competent licensing authority may refuse the application for extension if the water surface manager gives consent to the use of the water surface as a result of a request for direct consultation with the water surface manager under Article 14(2) of the former Inland Fisheries Development Promotion Act (affirmative)

[3] The case holding that the Chungcheong field constitutes "waters, the fishery activities of which are restricted or prohibited by other Acts and subordinate statutes" in the latter part of Article 10 (2) 1 of the former Inland Water Fisheries Development Promotion Act in that the water surface manager under other Acts and subordinate statutes established policies to prohibit the use of water for the purpose of preserving water quality in response to the request of the head of the environmental office for cooperation

[4] In a case where a water surface manager fails to attach a written consent, etc. to an application for an extension of the license period for a fish farming business under the former Inland Water Fisheries Development Promotion Act, whether the competent licensing authority should obtain consent after consultation with the water surface manager (affirmative), and whether the competent licensing authority may refuse an application for an extension of the license period where the water surface manager makes a decision on the purpose of Article 14(2) of the former Inland Water Fisheries Development Promotion Act and gives consent (affirmative)

[5] In a case where the extension of the period of fishery license is not permitted due to the reason that the act of fishery is limited or prohibited under the latter part of Article 10 (2) 1 of the former Inland Water Fisheries Development Promotion Act, whether the holder of the fishery license has the right to claim compensation for damages under the former Fisheries Act (negative)

[6] The case affirming the judgment of the court below that the rejection of new permission and extension of license to the Korea Water Resources Corporation, which is the Administrator of the Environment Office, etc., to the Korea Water Resources Corporation, and the rejection of consent to the use of water surface by the Korea Water Resources Corporation or the competent licensing authority, does not constitute a tort beyond the scope of discretion

[1] The case holding that non-permission disposition on an application for extension of the license period for the fish farming business of inland waters is due to the consent of the Korea Water Resources Corporation, which is an inland water manager, to preserve the water quality of the Cheongju, and it does not constitute a case of public works under Article 3 (2) of the Land Expropriation Act, on the ground that it is not due to the necessity of wide-area waterworks business in the Cheongju Dam system

[2] Examining the former Inland Fisheries Development Promotion Act (amended by Act No. 6255 of Jan. 28, 200), and the inland inland water manager, when the Minister of Oceans and Fisheries requests consultation on the use of inland water, shall give priority to other persons to the extent that it does not interfere with the purpose of maintaining and preserving the facilities (Article 14(2)). When a fishery license is granted under the same Act, approval, etc. is deemed to have been obtained to use and occupy the relevant inland water under other Acts applicable to the relevant waters, such as the occupation and use permission under Article 5 of the Public Waters Management Act (Article 14(1)), and when a fishery license is applied for the extension of inland water quality, the Minister of Maritime Affairs and Fisheries shall consult with the inland water manager (Article 7(4)), and when a request for permission for the extension of inland water quality is made, the same shall also apply to the cases where a license is not made for the purpose of using and using the relevant waters, and the same shall also apply to the cases where a license is applied for the permit for the extension of inland Water Fisheries Development Promotion Act.

[3] The case holding that, inasmuch as the water surface manager under other Acts and subordinate statutes established a policy to prohibit the use of waters for the purpose of preserving the water quality in response to the request of the head of the environmental office for cooperation, it falls under the "waters where the fishery activities are restricted or prohibited by other Acts and subordinate statutes" under the latter part of Article 10 (2) 1 of the former Inland Water Fisheries Development Promotion Act (amended by Act No. 6255 of Jan. 28, 200)

[4] According to the provisions of Article 14 (2) of the former Inland Fisheries Development Promotion Act (amended by Act No. 6255 of Jan. 28, 2000), and Articles 27 (2) and 19 (3) 3 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 16171 of Mar. 3, 199), when applying for an extension of the license period for fish farming business, a written consent or explanation of the water surface manager may be attached to the application for extension of the license period, and if the application is not attached, the competent licensing authority shall obtain the consent after consultation with the water surface manager, and the water surface manager may refuse the application for extension of the license period under the provisions of Article 14 (2) of the former Inland Water Fisheries Development Promotion Act (amended by Act No. 6255 of Jan. 28, 200), if the water surface manager does not consent to it for the purpose of maintaining facilities or preserving the relevant water surface.

[5] Article 81 (1) 1 of the former Fisheries Act (amended by Act No. 6257 of Jan. 28, 200), which applies mutatis mutandis under Article 16 of the former Inland Fisheries Development Promotion Act (amended by Act No. 6255 of Jan. 28, 200), provides that a person who suffers losses due to a disposition such as restricting licensed fisheries due to a need for public interest under Article 34 (1) 1 through 5 of the same Act, or due to an extension of the term of validity of a fishery license due to a need for public interest under Article 34 (1) 1 through 5 of the former Inland Fisheries Development Promotion Act (amended by Act No. 6257 of Jan. 28, 200), shall be entitled to claim compensation against an administrative agency. Thus, where a person suffers losses due to licensed fisheries, it shall be limited to the causes under Article 34 (1) 1 through 5 of the former Fisheries Act (amended by Act No. 6257 of Jan. 28, 2000). 15 of the former Inland Fisheries Development Promotion Act (amended by Act)

[6] The case affirming the judgment of the court below that the rejection of new permission and extension of license to the Korea Water Resources Corporation, which is the Administrator of the Environment Office, etc., to the Korea Water Resources Corporation, and the rejection of consent to the use of water surface to the Korea Water Resources Corporation's holder or the competent licensing authority, does not constitute a tort beyond the discretionary authority

[1] Article 34(1)5 and Article 81(1)1 of the former Fisheries Act (amended by Act No. 6257, Jan. 28, 200); Article 3(2) of the Land Expropriation Act / [2] Article 7(4) of the former Inland Water Fisheries Development Promotion Act (amended by Act No. 6255, Jan. 28, 200; Article 12(1) of the current Inland Water Fisheries Act); Article 14(2) (see current Article 12(2) of the Inland Water Fisheries Act; Article 19(2) and 27(2) of the former Enforcement Decree of the Inland Water Fisheries Development Promotion Act (amended by Presidential Decree No. 250, Oct. 1, 200; Article 205 of the Inland Water Fisheries Act (amended by Act No. 1617, Mar. 3, 199) / [3] Article 16(1) of the former Inland Water Fisheries Development Promotion Act (amended by Presidential Decree No. 20165, Dec. 16, 25, / [3]

[4] Supreme Court Decision 99Du8091 delivered on December 27, 2001 / [5] Supreme Court Decision 98Da14030 delivered on May 14, 199 (Gong199Sang, 1150)

Namcheon Agricultural Cooperatives (Attorney Lee Yong-soo et al., Counsel for the plaintiff-appellant)

Korea

Daejeon High Court Decision 98Na6228 delivered on January 25, 2002

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

We examine the grounds of appeal.

1. On the first ground for appeal

A. According to the reasoning of the lower judgment, the lower court recognized and determined as follows as to whether the instant non-permission disposition constitutes grounds for compensation for losses under Article 81(1)1 of the former Fisheries Act (amended by Act No. 6257, Jan. 28, 200; hereinafter the same shall apply) at the time of the relevant disposition.

Article 34 (1) 5 of the former Fisheries Act provides that when it is necessary for the public works under Article 3 of the Land Expropriation Act, the Mayor/Do governor may restrict or suspend licensed fisheries. The Daejeon Regional Land Management Agency under the Ministry of Construction and Transportation may, for the stable supply of water in seven neighboring areas, such as Chungcheong-si, Chungcheongnam-si, etc., acquire a water collection facility, water purification facility, pipe, and pressure facility from the downstream of Chungcheong-si, which are capable of collecting 2,50,000t a day from the downstream of Chungcheong-si to the river in order to supply water in a stable manner, such as Chungcheong-si. Thus, the Minister of Land, Infrastructure and Transport may undertake a feasibility study and the master plan from October 1, 1993 to December 12, 1994 to establish the relevant water-purification facility construction work and recognize the fact that the water-purification facility construction work has been carried out by the Korea Water Resources Corporation (hereinafter referred to as the "Water Resources Corporation") under the Ministry of Construction and Transportation among the water-purification facility construction work.

However, according to the records, the non-permission disposition of this case is based on the consent to use the surface of the water of the Water Resources Corporation. On June 29, 1989, the head of the Korea Water Resources Corporation requested the president of the Korea Water Resources Corporation to request the consent to use the surface when extending the license period so that water pollution of lakes and marshes may not occur due to the farming. Accordingly, the Korea Water Resources Corporation did not consent to the request to use the surface of the public waters under its management. In light of the background and time of the consent to use the surface of the water and the commencement period of the wide-area waterworks project after the request from the head of the Korea Water Resources Corporation for the cooperation of the Korea Water Resources Corporation, the Korea Water Resources Corporation did not agree to the request for the consent to use the surface of the water of the Incheon City to preserve the water quality of the Chungcheong River as it was in the process of the request, and there is no evidence to prove that the consent to use the surface of the water for the purpose of the large-area waterworks project or for the new water only due to the need of the dam project.

B. In light of the relevant laws and records, the fact-finding and determination by the court below is just and acceptable, and there is no error of law as to the scope of "when necessary for public works under Article 3 of the Land Expropriation Act" under Article 34 (1) 5 of the former Fisheries Act, or as to the substantial grounds for non-permission of this case, or as to the factual grounds for non-permission of this case.

Supreme Court Decision 2002Da21578 Decided September 24, 2002 cited in the ground of appeal is not appropriate to be invoked in this case, with different cases.

The grounds of appeal disputing this issue are rejected.

2. On the second ground for appeal

A. Furthermore, the lower court determined as follows: (a) whether the Chungcheong-si constitutes “waters, the fishing activities of which are restricted or prohibited under the latter part of Article 10(2)1 of the former Inland Water Fisheries Development Promotion Act (amended by Act No. 6255, Jan. 28, 200; hereinafter referred to as the “former Inland Water Act”)” as stipulated in the latter part of Article 10(2)1 of the former Inland Water Fisheries Development Promotion Act.

Examining the former Inland Law, when the Minister of Oceans and Fisheries requests consultation on the use of inland waters, an inland water manager shall give prior consent to other persons to the extent that it does not interfere with the purpose of maintaining and preserving facilities (Article 14(2)); when a fishery business license under the same Act is granted, it appears that an approval, etc. is required to use and occupy the relevant waters by other Acts applicable to the relevant waters, such as permission for occupation and use under Article 5 of the Public Waters Management Act (Article 14(1)); when a fishery business license is granted to farmland improvement facilities, consultation with the relevant inland water manager is required (Article 7(4)); when an application for a fishery business license or an extension of the area is filed, an application for a fishery business license or an extension of the area is required to submit written consent by the owner, occupant, etc. of inland waters (Articles 19(2) and 27(2) of the former Enforcement Decree of the Inland Water Act). The same applies to cases where an application for an extension of the area is not made directly to the relevant permit manager, etc.

Therefore, when it is intended to newly obtain a license for the cultivation of fish or extend the validity period thereof under the former Inland Act, the provisions of each subparagraph of Article 14(1) of the former Inland Water Act, including the Public Waters Management Act (i.e., other Acts and subordinate statutes) requires the consent of the persons stipulated as the water surface manager. If the water surface manager does not give consent, the cultivation of fish is prohibited in the end, and if the water surface manager in other Acts and subordinate statutes establish a policy to prohibit the use of the water for the cultivation of fish for the preservation of water quality at the request of the head of the environment office, it is the "water where the fishery activities are restricted or prohibited by other Acts and subordinate statutes."

B. According to the provisions of Article 14(2) of the former Inland Water Act, Articles 27(2) and 19(2)3 of the former Enforcement Decree of the same Act (amended by Presidential Decree No. 16171 of March 3, 1999), when applying for an extension of the license period for fish farming business, the competent licensing authority shall attach a written consent or an explanatory note to the water surface manager. In the absence of such an attachment, the competent licensing authority shall obtain consent after consultation with the water surface manager. However, if the water surface manager determines that the use of the water surface of another person interferes with the maintenance or preservation purpose of the relevant water surface as prescribed by Article 14(2) of the former Inland Water Act, the competent licensing authority may refuse the application for extension of the license period (see Supreme Court Decision 9Du8091 of December 27, 2001), and the non-permission disposition of this case does not provide for the consent of the water surface manager before the water surface manager.

However, Article 81 (1) 1 of the former Fisheries Act, which applies mutatis mutandis under Article 16 of the former Inland Water Act, provides that a person who suffers losses due to a disposition such as restricting licensed fisheries due to a reason for the public interest necessity under Article 34 (1) 1 through 5 of the same Act, or due to a failure to permit an extension of the validity period of a fishery license, may file a claim against the administrative agency for compensation. Thus, where a loss is compensated for due to a reason under Article 34 (1) 1 through 5 of the former Fisheries Act, it shall be limited to the time due to a reason under Article 34 (1) 1 through 5 of the former Fisheries Act, and the latter part of Article 10 (2) 1 of the former Inland Water Act does not have a right to claim compensation under Article 81 (1) of the former Fisheries Act (see Supreme Court Decision 98Da14030, May 14, 199).

As such, under the provisions of Article 14(2) of the former Inland Water Act, the competent licensing authority may refuse an application for extension of the license period if the water surface manager determines whether the use of the water surface of another person obstructs the maintenance of facilities or the purpose of preservation of the relevant water surface and does not consent thereto. This is clear that the extension of the license period is not permitted due to reasons under Article 34(1)1 through 5 of the former Fisheries Act. Thus, there is no room to permit the claim for damages against such non-permission disposition.

Although this part of the judgment of the court below is somewhat insufficient, the conclusion of rejecting the plaintiff's assertion is just, and there is no error of law by misunderstanding the legal principles of the latter part of Article 10 (2) 1 of the former Inland Water Act.

The ground of appeal disputing this issue is rejected.

3. On the third ground for appeal

A. In addition, the court below ordered the Minister of Environment, etc. to refuse to grant a new permit and extension of a license to the Water Resources Corporation, which is an inland water manager in the Cheongju, and accordingly rejected a request for consent to the use of water by the plaintiff or Docheon City. The inland water manager shall give prior consent to the use of water to the extent that it does not impede the purpose of maintaining and preserving the relevant water surface when the competent licensing authority requests consultation on the use of water pursuant to Article 14(2) of the former Inland Water Act. The court below rejected the plaintiff's refusal of consent to the use of water surface and its instruction all violate Article 14(2) of the former Inland Water Act, since the use of the water surface violates Article 14(2) of the former Inland Water Act, the defendant is liable for damages suffered by the plaintiff due to such unlawful act, such as the Minister of Environment, etc.

The water surface manager may decide whether to consent to the use of the water surface of another person to the purpose of maintaining facilities and preserving the water surface. As seen earlier, the Water Resources Corporation rejected an application or request for consultation on the use of the water surface of the Plaintiff and the Incheon Metropolitan City for the purpose of preserving the water surface of the relevant water surface. The purpose of preserving the water surface of the Cheongju constitutes "the purpose of preserving the relevant water surface" as provided by Article 14 (2) of the former Inland Water Act, and "the purpose of preserving the water surface of the Plaintiff et al." is "the purpose of preserving the relevant water surface", and the refusal of the consent to the use of water surface of the Cheongju is required to preserve the water surface of the Cheongju because the water surface of the Plaintiff et al. is being aggravated due to feed and excreta discharged from the wale market. Thus, it is reasonable to deem that the refusal of the consent violated Article 14 (2) of the former Inland Water Act. Thus, the plaintiff's conjunctive claim on the premise that the

B. If the Minister of Environment, etc. orders the Korea Water Resources Corporation to refuse to grant a new permit or extension of a license to the Korea Water Resources Corporation, or requests the Corporation to cooperate with him/her not to grant a new permit or extension of a license to the Korea Water Resources Corporation, and intends to be an unlawful act that infringes on discretionary power with respect to the consent to use water surface, it should first be the premise that the Korea Water Resources Corporation’s refusal of a request for consent to use water surface and a request for consultation in accordance

However, the court below's decision to the same purport is justified, and there is no error in the misapprehension of legal principles as to illegal acts caused by infringement of discretionary power.

The grounds of appeal pointing out this issue are not accepted.

4. Therefore, the appeal is dismissed, and all 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 Yoon Jae-sik (Presiding Justice)