[1] The scope of the fishermen of public waters who can claim compensation or damages due to the execution of public projects on public waters, and the standard for determining whether the permission or report on fisheries was made under the restrictions on public projects

[2] Whether the validity of a permit or report for fisheries naturally becomes extinct after the expiration of the validity period (affirmative), and in such cases, whether the previous permit or report continues to continue even if a permit or report for fisheries is obtained or filed again (negative)

[3] The case holding that Gap's land seeds and seedlings production fisheries cannot be subject to compensation, in case where Gap, who is engaged in land seeds and seedlings production fisheries, applied for permission to occupy and use public waters necessary for reporting the previous land seeds and seedlings production fisheries whose validity period expires, but the reported fishery right was rejected, but the reported fishery right was extinguished since the implementation of the harbor project, and the state suffered losses and sought compensation for losses due to the implementation of the harbor project, etc.

[1] In order to deem that damage has occurred to a fishery proprietor of public waters due to the implementation of a public project, the pertinent fishery business operator, permitted fishery business operator, or reported fishery business operator should be engaged in the fishery business as well as the date of the public announcement of the license for implementation of the public project. The fishery permit or reported fishery business after the public announcement of the license for implementation of the project, etc. is premised on the relevant restriction under the condition that the restriction on the license or reported fishery business operator has already been objectively determined and conclusive. Unlike the fishery owner who previously completed the fishery permit or reported business, even if the interest that the fishery business operator can obtain is reduced due to the implementation of the said public project, it cannot be said that the owner suffered special loss subject to the compensation, even if the aforementioned public project was not carried out. In addition, the issue of whether the fishery business was restricted by such public project should be determined on the basis of the relevant permit or report, but it cannot be based on the fishery permit or report already expired.

[2] In the case of a license or report on fisheries, the validity of the license or report becomes extinct as a matter of course after the expiration of the validity period, unlike the fishery license, and even if the license or report is obtained or filed again, the validity or nature of the previous license or report cannot be seen to continue due to the renewal of the license or report period, and it becomes effective as a new license or report.

[3] The case holding that Gap's land seeds and seedlings production fishery business report can not be deemed as a special loss subject to compensation due to the execution of a harbor project because it is based on the premise that Gap's land seeds and seedlings production fishery business report becomes invalid after the implementation of a harbor project and the restriction of reported fishery business is already determined objectively and objectively, and the administrative agency's rejection of the application for permission for occupation and use of public waters cannot be deemed unlawful or unjust on the ground that Gap's land seeds and seedlings production fishery business cannot be deemed as being subject to compensation based on the relevant laws and regulations, in case where Gap's land seeds and seedlings production business report becomes invalid after the implementation of a harbor project and the implementation of a new report was made after the expiration of the effective period.

[1] Articles 4 and 76 of the Act on Acquisition of and Compensation for Land, etc. for Public Works; Article 44 (1) (4) of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works / [2] Articles 41 and 44 (see current Article 47) of the former Fisheries Act (amended by Act No. 7314, Dec. 31, 2004) / [3] Articles 4 and 76 of the Act on Acquisition of and Compensation for Land, etc. for Public Works; Article 44 (1) and (4) of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works; Article 34 (1) 5 (see current Article 34 (1) 6), Article 44 (2) (2) (see current Article 47 (2) and (4) (2) (see current Article 45 (2)) of the former Fisheries Act)

[1] Supreme Court Decision 9Da37382 delivered on May 26, 2000 (Gong2000Ha, 1504 delivered on February 26, 2002) Supreme Court Decision 2000Da72404 delivered on February 26, 2002 (Gong2002Sang, 797)

Plaintiff

Korea

Gwangju High Court Decision 2010Nu2240 decided January 27, 2011

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

The grounds of appeal are examined.

1. As to the fishery damage caused by the implementation of the instant harbor project, the lower court determined as follows, citing the first instance judgment, on the ground that the Plaintiff sought compensation for losses under the relevant statutes, such as the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (hereinafter “Public Works Act”) or the chief of a regional maritime affairs and fisheries office (the project executor of the said harbor project) and the representative of the damaged fishermen, pursuant to the agreement on the compensation for fishery damage

In other words, whether the owner of public waters is the owner of the public waters who has a claim for compensation due to the implementation of public works is the owner of the public waters who has the legitimate fishery license, permission or valid report completion certificate until the infringement of fishery rights is realized due to the commencement of the public works as well as the date of notification of the license for the implementation of the public works.

However, if such conclusion is carried out without exception, there may be unreasonable results that the license, etc. of fishery right located on the waters subject to compensation is not unfairly renewed due to the reasons attributable to the project operator after the determination and announcement of the public works implementation plan. Therefore, in cases where the fishery license, etc. is extinguished due to reasons not attributable to the fishery right holder between the “date of public works” and the “date of public works approval”, compensation for losses under Article 44(1) of the Enforcement Rule of the Public Works Act.

However, it is necessary to permit the occupation and use of public waters since the land seeds and seedlings production fishery is operated by the method of drawing water from public waters or flowing water from public waters. After the implementation plan of the instant harbor project was publicly announced, with regard to the Plaintiff’s application for the permission to occupy and use public waters necessary for reporting the previous land seeds and seedlings production fishery business after the expiration of the term of validity of the previous report on the above fishery business, the application for the permission to occupy and use public waters was returned to the head of the relevant regional maritime affairs and fisheries office, even though there is no concern that suspended oil may not be flowed at the time of the commencement of the harbor project.

As such, the Plaintiff’s failure to maintain the status as a reported fishery operator until the time of the enforcement of the instant harbor project is attributable to the Defendant. Therefore, it is unlawful that the Defendant unilaterally reduced the scope of the subject of compensation in the public notice of the compensation plan to exclude the Plaintiff from the subject of compensation. Therefore, without examining the validity scope of the fishery damage compensation agreement, the Plaintiff constitutes a person eligible for compensation

2. However, we cannot agree with the judgment of the court below for the following reasons.

A. As recognized by the court below, in order to deem that damages have occurred to a fishery operator of public waters due to the implementation of a public project or a claim for damages, the fishery business operator should engage in the fishery business as a legitimate licensed fishery business operator, permitted fishery business operator, or reported fishery business operator as well as the date of the public notice of the license for the implementation of the public project as well as the date of the public notice of the license for the implementation of the public project. The fishery permission or a report on the fishery business made after the public notice of the license for the implementation of the above public waters is premised on the restriction under the condition that the restriction on the permission or the reported fishery business was already objectively determined and conclusive. Unlike the fishery business operator who previously completed the fishery permission or the report, the fishery business operator cannot be deemed to have suffered special losses subject to the compensation for damages even if the interests that the fishery owner may gain due to the implementation of the public project are reduced, and thus, the issue of whether the permission or report was made under the restriction on such public project should be based on the relevant permission or report, but it cannot be based on the already expired fishery permission or report (see, etc.).

However, in the case of a license or report on fisheries, the validity of the license or report becomes extinct as a matter of course after the lapse of the validity period, and even if the license or report is obtained again or filed again, the validity or nature of the previous license or report can not be renewed only during the period of permission or report, and it becomes effective as a new license or report.

Meanwhile, according to Articles 34(1)5, 44(2), and 45(2) of the former Fisheries Act (amended by Act No. 7314, Dec. 31, 2004), the head of a Si/Gun/autonomous Gu may, if necessary for the implementation of public works as stipulated in Article 4 of the Public Works Act, reduce the term of validity of fishery reports for more than five years or restrict or suspend reported fishery business (see Supreme Court Decision 2001Du9288, Apr. 12, 2002). Thus, the head of a Si/Gun/autonomous Gu may not accept a fishery report in such cases (see Supreme Court Decision 2001Du9288, Apr. 12, 2002

According to the above legal principle, the Plaintiff’s report on the land seeds and seedlings production fishery, which had existed as effective at the time of the public announcement of the implementation plan of the instant harbor project, shall be deemed to have expired as a matter of course after the period of validity expires after the above public announcement. It cannot be deemed that there was a reply of the chief of a regional maritime affairs and fisheries office to the effect that it is impossible to establish the agreement, or that the Plaintiff’s application for permission for occupation and use of public waters was rejected on the ground that it did not extend the validity of the above report. Furthermore, even if the Plaintiff could complete the procedure of the instant fishery business again after the period of validity of the previous report expires due to the Plaintiff’s request for consultation upon the application for permission for occupation and use of public waters, or the said request was made without return of the above permission, it cannot be deemed that there was a special loss that is subject to compensation for losses due to the implementation of the instant harbor project, since the restriction on the reported fishery business already became objectively determined by the public announcement of the implementation plan of the instant harbor project. Therefore, the Plaintiff’s report cannot be deemed to be subject to the compensation for public works.

B. In addition, the permission to occupy and use public waters is a disposition that grants exclusive rights to a specific person to use public waters (see Supreme Court Decision 2002Du5016, May 28, 2004, etc.), and Article 7 of the former Public Waters Management Act (amended by Act No. 8819, Dec. 27, 2007), and subparagraph 6 of Article 11 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 20351, Oct. 31, 2007), where it is anticipated that the owner of the right to use public waters will suffer damage to the owner of the right to use public waters due to the occupancy and use permission, etc., the management agency may not obtain the permission to use public waters, or hold consultation or approval, without the consent of the owner of the right to use public waters (see, e.g., Supreme Court Decision 2002Du5016, May 28, 2004).

C. Therefore, the court below's finding the defendant's liability for compensation based on the relevant laws and regulations as above has affected the conclusion of the judgment by misunderstanding the legal principles on damages of reported fishery business subject to compensation for the implementation of public works. The defendant's ground of appeal pointing this out is with merit.

3. Conclusion

Therefore, without examining the remaining grounds of appeal by the defendant, the judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)