A. Standard point of time to determine whether a person is a “person who has a right to the public waters” under Articles 5 and 16(1) of the former Public Waters Reclamation Act (amended by Act No. 3901 of Dec. 31, 1986) (=the time of disposition for reclamation license)

B. Whether a fishery right may be infringed upon in relation to a person holding a reclamation right of public waters where a permit to extend the fishery right is rejected for reasons of the public interest such as reclamation of public waters and the validity of the fishery right expires (negative)

A. The "person who has a right to the public waters" under Articles 5 and 16 (1) of the former Public Waters Reclamation Act (amended by Act No. 3901 of Dec. 31, 1986) should be determined at the time of the disposition of reclamation license. Thus, although the person who had a right to the public waters at the time of the application of reclamation license, he cannot claim compensation for damages from the reclamation licensee because the person who lost his right before the disposition of reclamation license was taken.

(b) If a permit to extend the period of the fishery right is rejected for reasons of the public interest such as reclamation of public waters and the validity of the fishery right is terminated, it cannot be said that the fishery right is infringed in relation to the reclamation right holder of public waters.

Articles 5 and 16 of the former Public Waters Reclamation Act (amended by Act No. 3901 of Dec. 31, 1986); Articles 14 and 20 of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990)

[Judgment of the court below]

Kimk Law Firm, Attorneys Kim Young-young et al., Counsel for the defendant-appellant

Seoul High Court Decision 87Na4567 delivered on August 17, 1990

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

1. We examine the first ground for appeal.

(A) The interpretation and application of the law belongs to the court's full power, and the court below rejected the evidence No. 3 which the Minister of Government Legislation indicates the legal opinion on Article 14 (2) of the Fisheries Act and Article 16 (1) of the Public Waters Reclamation Act (the holder of the right in the public waters) in the form of questioning and response form, and rejected it without stating the error of the legal opinion. Thus, it is not reasonable to discuss this point.

(B) According to the reasoning of the judgment below, the court below acknowledged the fact that the defendant obtained the plaintiff's consent on the reclamation of the public waters of this case based on macroficial evidence, and acknowledged the fact that the defendant's application for the reclamation license of this case is based on the requirements under Article 5 (1) 2 and 3 of the Public Waters Reclamation Act which does not require the consent of the right holder. Thus, the plaintiff's above consent cannot be deemed as a consent necessary for reclamation of public waters under Article 5 (1) 1 of the Public Waters Reclamation Act which does not require the consent of the right holder. Meanwhile, the plaintiff's application for the extension of fishery license cannot be deemed as a consent of reclamation of public waters under Article 5 (1) 1 of the same Act, which is a government-oriented project (the reclamation of this case, until June 20, 1980). Accordingly, the court below confirmed the fact that the plaintiff's fishery right of this case was extinguished due to the expiration of the reclamation farmland development plan (the reclamation of this case).

According to Article 5 of the former Public Waters Reclamation Act (amended by Act No. 3901 of Dec. 31, 1986), if there is a person who has a right to public waters (Article 6 of the same Act), the person who has the right to reclamation agrees to reclamation (Article 1) (Article 6 of the same Act), where profits arising from reclamation considerably exceed losses (Article 2 of the same Act) and where reclamation is necessary for a project eligible for expropriation or use of land (Article 16 (1) of the same Act (Article 16 (1) of the same Act), the reclamation license can be granted only when it falls under any of the cases (Article 16 (2) of the same Act). According to the above Article 16 (1) of the same Act, the reclamation license holder shall compensate the owner of the right for losses or install facilities preventing such losses as prescribed by the Presidential Decree. Thus, the "person who has the right to public waters" should be determined on the basis of the reclamation license disposition at the time of application for reclamation license, and the person who has lost the right to the above public waters before such disposition becomes void.

In this case, the plaintiff holding the fishery right applied for an extension of the term of validity of the license after the plaintiff's consent was obtained on the reclamation of public waters and applied for an extension of the term before the reclamation license was granted, but the license was terminated at the time of reclamation license due to the reasons for the reclamation project. Thus, the plaintiff holding the fishery right does not constitute a person holding the right to compensate for losses as provided by Article 16 (1) of the Public Waters Reclamation Act. In addition, according to Article 14 (2) of the Fisheries Act, the holder of the fishery right has the right to obtain an extension of the term when the term expires unless there are reasons for refusing the extension of the term under Article 14 (3) and (4), and Article 20 (1) 3 of the Fisheries Act. However, if the extension of the term of validity is not permitted on the grounds of non-permission such as the case necessary for public interest, the fishery right is extinguished upon the expiration of the term of validity of the license (Article 14 (3) and (4), and Article 20 (1) 3) of the Fisheries Act).

Although the reasoning of the court below is somewhat insufficient, the plaintiff agreed on the reclamation of public waters of this case in the above opinion, but since the fishery right was extinguished before the reclamation license of this case was granted, the plaintiff is not a person entitled to the public waters under Article 16 (1) of the Public Waters Reclamation Act. It is just in holding that the plaintiff does not constitute a person entitled to the public waters under Article 16 (1) of the Public Waters Reclamation Act. There is no error in the misapprehension of legal principles as to the rules of evidence, such as the theory of lawsuit, or as

2. We examine the second ground for appeal.

The plaintiff asserted that there was an agreement among the plaintiff and the defendant on the compensation for the reclamation of this case during the facts of the cause of the claim of this case. However, according to the records (430, the court below's 10:00 on July 20, 1990, stated that the claim of this case was a claim for compensation for damages under the Public Waters Reclamation Act and not a claim under the agreement at the date of pleading of the court below's 18th court below's 1990, and thus withdrawn it. Thus, it cannot be said that the court below failed to make a decision on this issue, and therefore, the argument is groundless.

3. Therefore, the plaintiff's appeal is dismissed and the 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 Lee Chang-chul (Presiding Justice)