[1] The meaning of "interest protected by law" as a requirement for a third party, who is not the other party to an administrative disposition, to seek the revocation of an administrative disposition

[2] Whether the authorization under Article 18(1) of the Fisheries Act is required where the fishery right is transferred by auction (affirmative)

[3] Whether the transfer of fishery rights can be authorized for the fish farming business with a fishing ground area of 30 years or more licensed prior to the enforcement date of the former Enforcement Decree of the Fisheries Act (amended by February 18, 1991) (affirmative)

[1] The legal interest as referred to in Article 12 of the Administrative Litigation Act refers to the direct and specific interest protected by the law based on the pertinent administrative disposition, and it does not include any indirect or factual or economic interest related to the pertinent administrative disposition. However, even if a third party who is not the direct counter party of the administrative disposition is infringed on the legal interest protected by the law due to the pertinent administrative disposition, it is entitled to file a revocation lawsuit and obtain a decision on its propriety.

[2] Article 18(1) of the Fisheries Act provides that the transfer of a fishery right shall obtain authorization from an administrative agency such as the head of a Si/Gun after the lapse of a certain period from the registration date of the fishery right. It is reasonable to deem that the authorization of the administrative agency such as the head of a Si/Gun should be required not only for legal acts between private persons but also for cases where the fishery right

[3] Unlike other fishing grounds, it is difficult to divide a festival-type fish farm into construction of various facilities including banks, such as floodgates and pumping facilities, and the economic value may be significantly decreased if divided. Thus, considering such characteristics, the criteria for the area of fishing ground falling under the grounds for disqualification for a license under Article 19 of the Regulation on Fishery Business and Fishing Ground Management in order to permit fishing grounds to be licensed without dividing the fishing ground itself, even if the fishing ground area is extinguished and the fishing ground area is to be licensed again for a festival-type fish farming business legally licensed prior to the enforcement date of the Fisheries Act (amended by Presidential Decree No. 13308, Feb. 18, 1991), which had no restrictions on fishing ground area, can be granted a license even if the fishing ground area is reduced in accordance with Article 19 of the above Rule.

[1] Article 12 of the Administrative Litigation Act / [2] Article 18 (1) of the Fisheries Act / [3] Article 10 subparagraph 3 of the Fisheries Act, Article 18 of the Fisheries Act, Article 12 (1) 2 and (4) of the Enforcement Decree of the Fisheries Act, Article 19 of the Rules on the Management of Fishing Licenses and Fishing Grounds

[1] Supreme Court Decision 96Nu3630 delivered on June 28, 1996 (Gong1996Ha, 2394), Supreme Court Decision 96Nu14906 delivered on April 25, 1997 (Gong1997Sang, 1653), Supreme Court Decision 96Nu10614 delivered on June 11, 199 (Gong1999Sang, 1427), Supreme Court Decision 97Nu1006 delivered on July 23, 199 (Gong199Ha, 179Ha, 1796), Supreme Court Decision 9Du6026 delivered on October 12, 199 (Gong199Ha, 2345), Supreme Court Decision 200Nu208175 delivered on July 23, 199 (Gong199Ha, 2345)

Plaintiff (Attorney Lee Jae-soo et al., Counsel for the plaintiff-appellant)

The Head of Taean Gun (Attorney Lee In-bok, Counsel for defendant-appellant)

National Federation of Fisheries Cooperatives (Attorney Byung-il et al., Counsel for the defendant-appellant)

Daejeon High Court Decision 2002Nu910 delivered on November 28, 2002

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

The grounds of appeal are examined.

1. Scope of the judgment of this court;

The court below dismissed the plaintiff's main claim and accepted the conjunctive claim in this case where the plaintiff primarily sought a revocation confirmation of the above-mentioned authorization disposition against the non-party as to the transfer approval disposition of fishery right of this case, and the defendant appealed against the judgment below as to the above conjunctive claim, and thus, the scope of the court's judgment is limited to the above conjunctive claim.

2. As to standing to sue

A. Legal interest as referred to in Article 12 of the Administrative Litigation Act refers to a direct and specific interest protected by a law based on the relevant administrative disposition, and it does not include any indirect or factual or economic interest related to the relevant administrative disposition. However, even if a third party is not the direct party of the administrative disposition, if the interests protected by the law due to the relevant administrative disposition are infringed, he/she shall be entitled to obtain a decision on the propriety thereof by filing a revocation lawsuit (see Supreme Court Decision 2001Du4450 delivered on October 25, 2002).

The court below held that the non-party as the fishery right holder of this case would lose the fishery right of this case when the non-party acquires the fishery right of this case, and even when the fishery right is transferred by auction, there is a legal interest to seek revocation of the above disposition on the grounds that the non-party acquired the fishery right of this case and the plaintiff would lose it due to the defendant's approval disposition of this case against the non-party awarded the above fishery right through auction.

The above judgment of the court below is just in accordance with the above legal principles, and there is no error in the misapprehension of legal principles as to the interest in seeking a revocation of the authorization disposition, as otherwise alleged in the ground of appeal

The Supreme Court precedents cited in the grounds of appeal are inappropriate to be invoked in the instant case as they differ from the instant case.

B. The record reveals that the fishery right of this case has expired due to the expiration of the extension period of February 7, 2003, and thus, even if the cancellation of the authorization of this case, the plaintiff cannot recover it. However, the plaintiff suffered disadvantage due to the above authorization of not exercising the right as a fishery right until the expiration of the extension period of the above fishery right, and the plaintiff cannot exercise his right as a fishery right holder, such as seeking the return of profit derived from the above fishery right to the person who occupied and used the above fishery right, unless the above authorization of this case is revoked. Thus, in a lawsuit aimed at restoring such profit, the above authorization of this case can not be asserted on the premise that the above authorization of this case is illegal, and therefore there is no legal interest

The Supreme Court precedents cited in the grounds of appeal are inappropriate to be invoked in the instant case as they differ from the instant case.

C. In addition, it is reasonable to view that the plaintiff as a legal interest in dispute over the validity of the authorization on the transfer of fishery right of this case, such as the plaintiff's approval on the transfer of fishery right of this case who is not authorized.

The Supreme Court Decision cited in the ground of appeal pointing out in the ground of appeal pointing out the validity of the authorization disposition by the administrative agency on the grounds of defects in the basic act.

3. As to whether approval is necessary for the transfer of fishery right by successful tender

Article 18(1) of the Fisheries Act (hereinafter referred to as the "Act") provides that the transfer of a fishery right shall obtain authorization from the head of a Si/Gun/Gu, after a certain period of time has elapsed from the registration date of the fishery right, after the transfer of the fishery right. It is reasonable to deem that the authorization of the administrative agency, including the head of a Si/Gun, is necessary not only for legal acts between private persons, but also for cases where the fishery right is transferred by an auction under the Civil Procedure Act (see Supreme Court Order 2001Ma6076, Jan.

The court below's decision that the transfer of fishery right of this case requires approval is just in accordance with the above legal principles, and there is no error in the misapprehension of legal principles as to the transfer of fishery right as otherwise alleged in the ground of appeal.

The Supreme Court precedents cited in the grounds of appeal are inappropriate to be invoked in the instant case as they differ from the instant case.

4. With respect to whether the transfer of a fishing right can be authorized for a festival type fish farming business with the area of at least 30 degrees of fishing ground licensed before February 18, 1991:

A. The lower court determined that Article 10 subparag. 3 of the Enforcement Decree of the Act on the Management of Fishing Villages and Fishing Grounds under Delegation of Article 12(4) of the same Act (hereinafter referred to as the “Regulations on the Management of Fishing Villages”) provides that a person who intends to acquire fishing grounds more than a certain scale of fishing grounds shall be prohibited from obtaining a license for fishing rights, and that Article 12(1)2 of the Enforcement Decree of the same Act delegated by the above provision provides that the limitation of the area of fishing grounds for each individual or organization, excluding fishing village fraternities and district associations, shall be 30 degrees. However, the lower court determined that the aforementioned provision on the grounds that Article 19 through 19 of the Enforcement Decree of the same Act (hereinafter referred to as the “Regulations on the Management of Fishing Villages and Fishing Grounds”) can not be construed as an exception to a license where a person who intends to obtain a license on February 18, 191 at least a certain scale of fishing grounds has expired and the term of validity of the license has expired, and that a fishing right can not be applied beyond the scope of the aforementioned statutory interpretation.

B. However, the purport of Article 18(2) of the Act is that a person who intends to acquire fishing rights shall not obtain such authorization if he falls under any of the subparagraphs of Article 10 of the Act. Since the purpose of Article 10 of the Act is that the grounds for disqualification for transfer are the same as those of the subparagraphs of Article 10 of the Act, Article 10 subparagraph 3 of the Act and Article 12 of the Enforcement Decree of the same Act, which provides the grounds for the limitation on the area of fishing grounds subject to grounds for disqualification as well as Article 18(2) of the Act, which provides for the restriction on the area of fishing grounds as well as Article 19 of the Enforcement Decree of the Fisheries Act, which provides for the restriction on the area of fishing grounds as well as Article 18(3) of the same Act, which provides that a person who intends to obtain fishing rights shall not obtain a license shall not obtain a license prior to the date of entry into force of the license, it is difficult to legally limit the area of fishing grounds for fishing grounds to the extent that the area of fishing grounds in question is less than the area of fishing grounds for fishing grounds.

C. Nevertheless, the court below held that since Article 19 of the Fishery Business Rule cannot be applied to the transfer of fishery right in the case of transfer of fishery right, the permission of this case made by the defendant against the non-party is illegal to the non-party and accepted the plaintiff's preliminary claim. Thus, the court below erred by misapprehending the legal principles on whether to transfer fishery right under Article 18 of the Fisheries Act, which affected the conclusion of the judgment.

5. Therefore, without examining the remaining grounds of appeal, the part concerning the conjunctive claim among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Byun Jae-chul (Presiding Justice)