[1] The case holding that a person who is not within the maximum working age of fishermen is not recognized as a practice fishery right

[2] The scope of damages caused by the loss of the fishery right due to the implementation of the reclamation project of public waters (=amount equivalent to compensation for losses) and the time and method of calculating compensation

[3] In the case of a tort committed after the enforcement of the former Enforcement Decree of the Fisheries Act (amended by Presidential Decree No. 15241 of Dec. 31, 1996), the law applicable by analogy to the calculation of the amount of damages in the case of a tort committed after the enforcement

[4] The case holding that it is unlawful to recognize the annual profit per unit area of a fishing ground by the practice of an adjacent joint fishing ground as the ordinary profit amount by the practice of a corresponding fishing ground, without considering the difference between the area of a fishing ground and the number of fishery workers in calculating the damage amount of the practice fishing right based on compensation for an adjacent joint fishing ground and the situation of conducting the practice fishing in an adjacent joint fishing ground in which some persons who have the practice fishing right in the corresponding fishing ground are comparatively

[1] The case holding that a person who is not within the maximum working age of fishermen does not have a customary fishing right

[2] In the case of compensation for damages caused by the loss of fishery right due to the implementation of a public waters reclamation project which fails to take lawful compensation procedures, the amount of compensation is equivalent to compensation, which shall be calculated based on the enforcement date of the public waters reclamation project which is the point of time of tort. The compensation method shall be applied by analogy to the provisions on compensation for reported fishery business under Article 22 of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 190), not to the cases where the fishery right recognized by a license for joint fishery business under Articles 8 and 24 of the former Fisheries Act

[3] 구 수산업법시행령(1991. 2. 18. 대통령령 제13308호로 개정되어 1996. 12. 31. 대통령령 제15241호로 개정되기 전의 것)은 제62조 제1항 제2호 ㈎목으로 신고어업의 손실보상액 산정기준에 관한 규정을 신설하여 신고어업의 소멸로 인한 보상액은 '평년수익액의 3년분 + 어선·어구 또는 시설물의 잔존가액 - 어선·어구 또는 시설물의 매각수입액'에 의하여 결정한다고 규정하고 있으므로, 위 시행령의 시행일인 1991. 2. 18. 이후에 발생한 불법행위로 인하여 소멸한 관행어업권의 손해배상액은, 위 시행령의 제정에 따라 1991. 10. 28. 삭제된 구 공공용지의취득및손실보상에관한특례법시행규칙(1988. 4. 25. 건설부령 제435호로 개정되어 1991. 10. 28. 건설부령 제493호로 개정되기 전의 것) 제25조의2를 유추 적용하여 2년분의 평년수익액을 기본금액으로 하여 산정할 것이 아니라, 위 시행령의 규정을 유추 적용하여 3년분의 평년수익을 기본금액으로 하여 산정하여야 한다.

[4] The case holding that it is unlawful to recognize the annual profit per unit area of a fishing ground by the practice of an adjacent joint fishing ground as the ordinary profit amount by the practice of a corresponding fishing ground, without considering the fact that the area of a fishing ground and the number of employees engaged in the fishery are different in calculating the damages of the practice fishing right based on compensation for nearby joint fishing ground and the situation that a certain person engaged in the practice fishing is engaged in the practice fishing in an adjacent joint fishing ground, which is subject to comparison

[1] Article 40 of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990) / [2] Articles 22 and 40 of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990) / [3] Article 40 of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990), Article 62 (1) of the former Enforcement Decree of the Fisheries Act (amended by Presidential Decree No. 15241 of Dec. 31, 1996) / [4] Article 62 (6) of the former Enforcement Decree of the Fisheries Act (amended by Presidential Decree No. 15241 of Dec. 31, 1996), Article 187 of the Civil Procedure Act

[1] [3] Supreme Court Decision 97Da41028 delivered on June 11, 1999 (Gong199Ha, 1342) / [1] Supreme Court Decision 97Da22935 delivered on July 24, 1998 (Unpublished in Official Gazette) / [2] Supreme Court Decision 95Da15032, 15049 delivered on April 14, 1998 (Gong1998Sang, 1310), Supreme Court Decision 9Da11529 delivered on November 23, 199 (Gong200Sang, 1) / [3] Supreme Court Decision 9Da57942 delivered on March 13, 201 (Gong201Sang, 865) / [3] Supreme Court Decision 98Da29989 delivered on April 29, 198 (Gong2098Da319890)

Plaintiff 1 and 91 others

Plaintiff 93 and 9 others (Attorneys Choi Jong-sik et al., Counsel for the plaintiff-appellant)

Jindo-gun (Attorney Kim Jae-chul et al., Counsel for defendant-appellant)

Seoul High Court Decision 97Na1145 delivered on June 17, 1999

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court. All appeals by the Plaintiffs are dismissed. The costs of appeal by the Plaintiffs are assessed against the Plaintiffs.

Examination of the Grounds of Appeal

1. As to the Defendant’s first, second, and third grounds of appeal

The court below determined that the plaintiffs and deceased persons suffered damage from the reclamation project of this case as a customary fishing right holder for the fishing ground of this case, and further, it is just to reject all the defendant's assertion that 83 of the plaintiffs agreed in advance to commence the reclamation project of this case without compensating the defendant for the infringement of customary fishing right as a practice fishing right holder for the fishing ground of this case, and that the reclamation project of this case was enforced after completion of the pre-compensation procedure, and that it is not unlawful for the plaintiffs, and there is no violation of the rules of evidence, incomplete hearing, or misapprehension of the legal principle as argued in the Grounds for Appeal. Accordingly,

2. Regarding the plaintiffs' first ground of appeal

The court below is justified in not recognizing the fishery right of this case against plaintiffs 93, 94, 95, 96, 97, 98, 99, and deceased plaintiffs 100, 101, and 102 on the ground that they did not have a member of the household within the fishermen's maximum working age as of November 11, 1991, which was 60 years of age or older as of November 11, 1991, which was the commencement date of the reclamation project of this case, on the ground that they did not have a member of the household within the fishermen's maximum working age, and there is no violation of the rules of evidence, any incomplete hearing, or any misapprehension of the legal principle as to the

3. The plaintiffs' second ground of appeal and the defendant's fourth ground of appeal

In the case of compensation for damages caused by the loss of fishing right due to the implementation of a public waters reclamation project which did not take lawful compensation procedures, the amount of compensation is equivalent to compensation, which shall be calculated based on the enforcement date of the public waters reclamation project, which is the time of the tort. The compensation method should be applied by analogy of the provisions on compensation for reported fishery business under Article 22 of the former Fisheries Act, instead of the provisions on cancellation of fishing right recognized by joint fishing business, etc. under Articles 8 and 24 of the same Act (see Supreme Court Decision 95Da15032, Apr. 14, 1998, 200).

However, the former Enforcement Decree of the Fisheries Act (amended by Presidential Decree No. 1308, Feb. 18, 1991; Presidential Decree No. 15241, Dec. 31, 1996; Presidential Decree No. 15241, Dec. 31, 1996) newly establishes a provision on the standards for calculating the amount of compensation for losses for reported fishery business under Article 62 (1) 2 (a) to determine the amount of compensation due to the extinction of reported fishery business by 'pro rata 3 years' + the residual value of fishing vessels, fishing gear, or facilities - the residual value of fishing vessels, fishing gear, or facilities - The amount of compensation for damages for fishing right extinguished due to the illegal acts occurred after February 18, 1991, which was the enforcement date of the above Enforcement Decree, shall be computed by analogy 3/190 of the former Enforcement Decree of the Public Service Act (amended by Ordinance of the Ministry of Construction and Transportation No. 435, Apr. 25, 198, 198).

Therefore, it is reasonable that the court below calculated the amount of damages of the plaintiffs, which is recognized as a claim for damages due to the loss of fishing right in this case, as the basic amount for three-years of ordinary earnings by analogically applying Article 62 (1) 2 (a) of the former Enforcement Decree of the Fisheries Act, which is a provision on the calculation of compensation for losses of reported fishery operators, which was enforced as of November 11, 1991, not on January 3, 191, which is the date of the public notice of the implementation plan for the reclamation project in this case, but on the date of commencement of the reclamation project in this case. There is no violation of the rules of evidence, incomplete hearing, incomplete reasoning, incomplete reasoning, or misapprehension of legal principles, as alleged in the grounds for appeal by the plaintiffs and the defendant. Accordingly, the

4. As to the plaintiffs' third ground of appeal and the defendant's fifth ground of appeal

A. The lower court, on the grounds that the first instance court’s appraisal of the amount of damages caused by the extinguishment of the fishing ground of this case had already been lost the function of the fishing ground of this case at the time of appraisal, and that it was impossible for the Plaintiffs to appraise their annual earnings through an on-site investigation, deeming that the annual output per unit area of the fishing ground of this case was almost the same as that of the first-class joint fishing ground of this case at 757, and that the annual earnings per unit area of this case were almost the same as that of the first-class joint fishing ground of this case at 757, and that the amount of damages caused to the fishing ground of this case at 757, 757, 757, 757, 700, 757, 757, 757, 757, 757, 700, etc., 757, 757, 757, 757, 757, 757, 700

B. In light of the contents of Article 62(6) and (7) of the former Enforcement Decree of the Fisheries Act as to the method of calculating the amount of loss of fishing right, etc., and the fact that it is difficult to view the amount per unit area of 757 joint fishing ground as equal to the amount of production per unit area of the fishing ground of this case, and the data from this case, the court below did not accept the appraisal result of the first instance appraiser, and held that the amount of the ordinary profit of the fishery right holder for the fishing ground of this case, including the plaintiffs, should be estimated on the basis of the compensation for the common fishing ground of 757 joint fishing ground as similar to the ordinary profit amount of the fishery right holder, and there is no violation of the rules of evidence, incomplete deliberation, or misapprehension of the legal principle as otherwise alleged in the ground of appeal by the plaintiffs. Therefore, although the method of calculating this amount is identical to the judgment of the court below, it is not erroneous in the misapprehension of the rules of evidence, or in the misapprehension of the legal principle as otherwise alleged in the ground of appeal by the plaintiffs.

C. However, in light of the fishery contents of a person holding a customary fishing right, it is difficult to view that the quantity of the fishing ground increased to the same level as the quantity of the fishing ground that each person can carry on a customary fishing is increasing. Moreover, a large number of the plaintiffs engaged in the fishery as a member of a fishing village fraternity in the 757 joint fishing ground. Meanwhile, the area of the fishing ground in this case is larger than two times the area of the 757 joint fishing ground and the number of employees engaged in the fishery in this case is smaller than 102 persons and not more than 212 persons in the 757 joint fishing ground and not more than 117 persons in the 757 joint fishing ground, the court below erred in the misapprehension of the rules of evidence or without considering the above circumstances or disclosing the special circumstances, and thereby, it did not err in the misapprehension of the judgment by failing to exhaust all necessary deliberations, which affected the conclusion of the judgment.

5. Therefore, by accepting the defendant's appeal, the part against the defendant among the judgment below against the defendant is reversed, and that part of the case is remanded to the court below. All appeals by the plaintiffs are dismissed, and the costs of the appeal by the plaintiffs are assessed against the losing party.

Justices Zwon (Presiding Justice)