[1] The legal nature of the practice fishing right, and whether the practice fishing right can be established as to the cultivation of fish or the political fishery (negative)

[2] Whether a uniform fishery, which is installed and installed in the sea of 3 to 4 meters high in full tide and collects aquatic animals infected with a small-sized vessel, from the sea of 2 to 3-4 meters high in full tide, constitutes a politically divided fishery or politically divided fishery (affirmative)

[1] Article 40 of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990) provides that if the fishery right continues to catch marine animals and plants for a long time on a fishing ground without a license for a certain fishing ground before the establishment of a joint fishery right for a certain fishing ground, and it leads to the degree of general recognition for the majority of the public, even if a joint fishery right is established on the public waters, the joint fishery right holder may claim and exercise the joint fishery right, and even if the joint fishery right is not established, the right to claim and claim the exclusion against the third party infringing such right, such as the fishery right, which is recognized as a joint fishery business license under Articles 8 and 24 of the same Act, and it is merely a right to catch marine animals and plants by entering a certain public waters without being disturbed by others. Thus, such a practice is not likely to be established by dividing the public waters into a certain area of waters and artificially dividing the marine animals and plants into a certain area of marine animals and plants with a fishing gear or other fishing gear using it.

[2] The head of Si/Gun/Gu has fixed and installed several large numbers of trees on the sea where the water 50 to 150 meters long in length, and the water boomed from about 50 to 150 meters long, and the water boomed from 2 to 4 meters long, and the water boomed from boomed from 2 to 3 to 4 meters long, and the water boomed from 3 to 4 meters long, and then re-establishs the water boomed on the water (one month), one to two times a day by using a non-powered vessel or a small-sized vessel with a gross tonnage of not more than 5t, and the fishery gear is not listed in the former Fisheries Act (amended by Act No. 4252, Aug. 1, 1990) or the fishery gear is not listed in the former Enforcement Decree of the Fisheries Act (amended by Presidential Decree No. 13831, Mar. 13, 198).

[1] Article 8 subparagraph 1, subparagraph 2, and Article 40 (1) of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990) / [2] Article 8 subparagraph 2 of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990) and Article 40 (1) of the former Fisheries Act

[1] Supreme Court Decision 94Da55323 delivered on September 15, 1995 (Gong1995Ha, 3380), Supreme Court Decision 95Da15032, 15049 delivered on April 14, 1998 (Gong1998Sang, 1310), Supreme Court Decision 97Da41028 delivered on June 11, 199 (Gong199Ha, 1342)

Plaintiff (Appointed Party) (Law Firm Gangseo-dong General Law Office, Attorneys Dok-gu et al., Counsel for the plaintiff-appointed party-appellant)

Korea Land Corporation and one other (Attorney Jung-jin et al., Counsel for the plaintiff-appellant)

Busan High Court Decision 97Na164 delivered on January 16, 1998

The appeal is dismissed. The costs of appeal are assessed against the plaintiff (appointed party).

We examine the grounds of appeal.

1. As to the grounds of appeal Nos. 1 and 2

According to the reasoning of the lower judgment, the lower court, based on the evidence adopted by the Plaintiff 1 and the designated parties to fisheries (hereinafter “the Plaintiff, etc.”). As to the process of consulting with the Plaintiff 1’s Busan City Fisheries Cooperatives, Jinhae Fisheries Cooperatives, etc. and the Defendants, on July 190, 190, proposed that the Defendants would not be able to engage in fisheries for the same purpose as that of the Plaintiff 1’s non-licensed fishery business under this case’s Act, and that the Defendants would not be able to engage in fisheries for the same reason as that of the Plaintiff 1’s non-licensed fishery business under this case’s Act, and that the Defendants would not be able to engage in fisheries for the same reason as that of the Plaintiff 1’s non-licensed fishery business under this case’s revised research and development agreement, including that of the Plaintiff 1’s non-licensed fishery business under this case’s revised research and development agreement. As such, the Defendants would not be able to claim compensation for damages for the same reason as that of the non-licensed fishery business agreement.

In a case where there is a difference between the parties regarding the interpretation of a contract and the interpretation of the intention of the party expressed in the disposition document is at issue, such interpretation shall be reasonably interpreted in accordance with logical and empirical rules by comprehensively taking into account the contents of the text, the motive and background leading up to the agreement, the purpose to be achieved by the agreement, the parties’ genuine intent, etc. (see, e.g., Supreme Court Decisions 96Da1320, Apr. 9, 196; 97Da5060, Dec. 12, 1997).

However, even when comprehensively considering the language and text of the above agreement, in particular, the contents of Articles 4 and 9 (5), the motive and background of the conclusion of the above agreement as shown in the facts acknowledged by the court below, and the purpose that both parties intended to achieve through the above agreement, the compensation under Article 4 of the above agreement is limited to lawful fishing (license, permit, report) and practice fishing (limited to lawful fishing) and damages, as asserted by the plaintiff, etc., and it cannot be interpreted that the fishermen including the plaintiff et al. are entitled to compensate for the damages incurred to all the fishery business they actually carried on, as alleged by the plaintiff, without distinguishing lawful and incidental fishing. As for other fishery losses not compensated under Article 4 because they do not fall under legitimate fishing or practice fishing and do not fall under legitimate fishing and practice fishing, it shall be interpreted that the compensation is made through consultation between the defendants and the above three fisheries cooperatives.

In addition, the concept of practice fishery under Article 4 of the above agreement is to be interpreted as a right to request exclusion of a third party who contests or claim compensation for damages arising therefrom (see, e.g., Supreme Court Decision 88Meu14250, Jul. 11, 1989). In addition, it cannot be deemed that there exists a different meaning of practice from the above three fisheries cooperatives and the Defendants, as well as that there is no separate definition of practice in the negotiation process of the above agreement or the concept of practice in the above agreement between the above three fisheries cooperatives and the Defendants. Thus, the concept of practice fishery under the above agreement can be interpreted as a right to claim compensation for damages.

In the same purport, the court below's rejection of the plaintiff's above assertion is just, and there is no error of law due to the plaintiff's error in selecting evidence, or violation of logical rules or experience rules, or a misapprehension of legal principles as to the interpretation of a contract, or an interpretation of a disposition document, as alleged in the ground of appeal.

The ground of appeal concerning this cannot be accepted.

2. As to the fifth ground for appeal

Article 40 of the former Fisheries Act provides that if the fishery right continues to catch marine animals and plants for a long time in the fishing place before the establishment of a common fishing right for any fishing place, and such right results in a generally acceptable extent to the majority of such public waters, the joint fishing right holder may claim and exercise the right, even if the joint fishing right is established on the public waters, and a third party who infringes such right may claim and claim compensation for damages therefrom even if the joint fishing right is not established (see, e.g., Supreme Court Decisions 88Meu14250, Jul. 11, 1989; 93Da45701, Mar. 25, 1994; 97Da2935, Jul. 24, 1998). However, it is a right to claim for the exclusive fishing right of marine animals and plants from a third party without an exclusive fishing right of a certain area of public waters as determined by Articles 8 and 24 of the former Fisheries Act.

However, according to the facts duly established by the court below, the main fishing of this case operated by the plaintiff et al. has been collecting marine animals by using non-powered vessels or small vessels of 50 tons or less in length, and by using 50-150 meters long-term circulation nets or 2-4 meters long-term circulation nets or nets, which are installed at the angles of the network, and 3-4 meters long-term circulation nets or 4 meters long-term and fixed and installed in the sea where the depth of the water is no longer than 3-4 meters (one month-long transfer of 1 place) and has a right to exclusively gather marine animals and plants from the public waters without any specific fishing gear’s right to exclusively gather marine animals and plants (amended by Presidential Decree No. 13583, Feb. 18, 191). However, it constitutes a political fishing gear within a certain period of time without any interference with the plaintiff et al.’s right to exclusively use marine animals and plants from the public waters.

The court below is just in its conclusion that although the plaintiff et al. provides a somewhat different explanation on this, it does not constitute a practice fishery. In so doing, the court below did not err by misapprehending the legal principles as to the selection of evidence, contrary to the logical rules, or by misapprehending the legal principles as to the former Fisheries Act, contrary to the logical rules, or failing to pay attention, etc., as alleged in the ground of appeal.

The ground of appeal concerning this cannot be accepted.

3. As to the third ground for appeal

As seen earlier, the Defendants declared in the course of the negotiations with the above three fisheries cooperatives that it is impossible to legally compensate for non-licensed, non-licensed, and reported fisheries in addition to the facility cost compensation. However, as a result of partial acceptance of fishermen's demands, the Defendants decided to deal with non-licensed, non-licensed, and reported fisheries in accordance with relevant laws, precedents, and customs based on the results of the service agency's investigation. As such, the Defendants classified the non-licensed, non-licensed, and reported fisheries into the Busan National Institute for Marine Science and Technology, which is a service agency, into other fisheries, and conducted an investigation into the actual condition, damage, etc., or failed to compensate for such non-licensed, non-licensed, and reported fisheries. Therefore, the Defendants cannot be said to have violated the principle of no advice or the principle of good faith.

This part of the grounds of appeal cannot be accepted.

4. Regarding ground of appeal No. 4

The common fishing under Article 8 of the former Fisheries Act is clear that it cannot be protected by the fishery right unless it is licensed to the fishing village fraternity or the individual of the fishing village fraternity because it is specified by each type of fishery business, and it is not possible to have any other right except for the establishment of such fishery right or the establishment of a common fishing right. Thus, even if the Song Do fishing village fraternity to which the plaintiff et al. belongs is actually converted into the corresponding place of fishery business, it cannot be recognized that all kinds of fishery such as the instant Dopy fishery in which the plaintiff et al. acquired any right by itself or the plaintiff et al. actually carried out in the corresponding place of fishery business.

In the same purport, the decision of the court below that rejected the plaintiff's assertion is just, and there were no errors in the misapprehension of legal principles as to the admission of evidence, which misleads the selection of evidence, the conversion of fishing ground to the fishing village fraternity, and the fishery of this case.

This part of the grounds of appeal cannot be accepted.

5. 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 Lee Jae-hee (Presiding Justice)