[1] The meaning of the customary fishing right under the former Fisheries Act and the status of the customary fishing right holder

[2] Whether the registration of the original register of fishing rights is required for the recognition of the customary fishing rights after the enforcement of the former Fisheries Act even in cases of fishing grounds without the original register of fishing rights (affirmative)

[3] Requirements for establishing a "right (fishing right) pursuant to the practice of entry into a fishing place" under Article 40 of the former Fisheries Act

[4] Whether the establishment of a customary fishing right can be recognized in a case where there is no special restriction on the use of fishing grounds inside and outside the country (negative)

[1] Article 40 (1) of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990; hereinafter referred to as the "former Fisheries Act") provides that "the right pursuant to the practice of entry into a fishing place" refers to the degree that a person who continues to catch or gather marine animals and plants for a long time from a fishing place before the establishment of a joint fishing right to a certain fishing place to the majority of the persons concerned without a license to do so, and thus, the public waters in question can be recognized regardless of whether the joint fishing right is established or not, and it does not require a report on the fishery business or a registration on the original register of fishing right, and where a customary fishing right is recognized, if a person who has the public waters reclamation right suffers damage to the person who has the customary fishing right due to commencement and implementation of reclamation of public waters without prior compensation or consent, such act constitutes a tort against Article 16 and Article 17 of the former Public Waters Reclamation Act (amended by Act No. 537 of Apr. 10, 1997).

[2] In light of all the provisions of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990 and amended by Act No. 5131 of Dec. 30, 1995; hereinafter referred to as the "Revised Fisheries Act") and the former Public Waters Reclamation Act (amended by Act No. 5337 of Apr. 10, 1997), it is not sufficient to simply mean that the fact that the fishery right is continuously captured and gathered in a certain public waters after the enforcement of the amended Fisheries Act is recognized as a right to the fishery in accordance with a certain public waters, such as the previous public waters, and the fact that the fishery right is continuously captured and gathered in the above public waters, and it is not necessary to register matters concerning the fishery right's original register of fishery right's fishing right's fishing right's fishing right's fishing right's fishing right's fishing right's fishing right's fishing right's fishing right's fishing right's fishing right's fishing right's fishing right's fishing right' development standard is not clearly established.

[3] As a matter of principle, the customary fishing right under the former Fisheries Act is recognized by independent households, and a certain period of time shall be recognized as to a person who has been transferred from a branch of a sub-branch of not more than South and North Korea, and even in this case, it shall be recognized only for those who have labor ability and intention to continue such fishery and who are between 20 and 60 years of age.

[4] In light of the fact that the customary fishing right is not only a right that can be claimed and exercised by the joint fishing right holder even if the joint fishing right is established on the public waters in question, but also a real right that can be claimed against the third party infringing the right, even if the joint fishing right is not established, it is also a right that has a real right to claim the exclusion or damages therefrom. Thus, it is difficult to recognize that it is a customary fishing right holder who has carried out a customary fishing business under Article 40 of the former Fisheries Act by carrying out a customary fishing business, inasmuch as the circumstances such as the use of the fishing ground did not have any restrictions externally and externally, but also can be excluded from a third party's fishing business in the fishing ground, and it is not recognized that the specific period of fishery activities or the result of trade in catch (e.g., consignment through a fisheries cooperative or fishing village fraternity) have not been established.

[1] Article 40 (1) of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990), Article 16 (see current Article 14), and Article 17 (see current Article 20 (1)) of the former Public Waters Reclamation Act (amended by Act No. 5337 of Apr. 10, 1997) / [2] Article 2 subparagraphs 6 and 7, Article 16, and Article 44 of the former Fisheries Act (amended by Act No. 5131 of Dec. 30, 195), Article 11 of the Addenda of the former Public Waters Reclamation Act / [3] Article 40 of the former Fisheries Act (amended by Act No. 4252 of Aug. 10, 1990) / [40 of the former Fisheries Act (amended by Act No. 5131 of Dec. 4, 199)

Supreme Court Decision 96Da3258 delivered on March 28, 1997 (Gong1997Sang, 1199), Supreme Court Decision 98Da12430 delivered on October 8, 199 (Gong1999Ha, 2282), Supreme Court Decision 98Da25979 delivered on November 12, 199 (Gong1999Ha, 2472), Supreme Court Decision 99Da5840, 58457 delivered on December 28, 199 (unpublished) / [2] Supreme Court Decision 96Da3838 delivered on October 10, 199 (Gong197Ha, 3385), Supreme Court Decision 209Da39749 delivered on November 26, 299 (Unpublished 97Da397499 delivered on April 29, 209) / [309Da5397999 delivered on November 296, 2997

Plaintiff (Appointed Party) 1 and 3 others (Attorney Park In-bok, Counsel for the plaintiff-appellant)

Korea

Jeonju District Court Decision 95Ga172, 936, 974, 1335, 1342, 96Ga513 delivered on August 22, 1998

1. All appeals by the plaintiffs (appointed parties) are dismissed.

2. The costs of appeal are assessed against the Plaintiff (Appointed Party).

The defendant shall pay to the plaintiffs (appointed parties, hereinafter referred to as the "Plaintiffs") and the designated parties listed in the separate sheet No. 1 the amount in the corresponding claim column of the same list and each of the above amounts in the corresponding claim column of the same list from October 23, 191 to the pronouncement date of the judgment of the court of the first instance, 5% per annum from the next day to the date of the decision of the court of the first instance, 25% per annum from the next day to the date of the full payment, and 25% per annum from the delivery date of the copy of the lawsuit to the date of full payment (the plaintiff has partially modified the claim portion of the claim for delay compensation in the judgment of the court below).

The part of the judgment of the court below against the plaintiffs and the designated parties listed in the annexed Form 1 shall be revoked. The defendant shall pay to the plaintiffs and the aforementioned designated parties the amount stated in the item column of each corresponding appeal in the same list, the amount of five percent per annum from October 23, 1991 to the date the judgment of the court of the party is rendered, and the amount at the rate of 25 percent per annum from the next day to the date of full payment.

1. Basic facts

The following facts are nonexistent between the parties, or there is no dispute between the parties, the evidence listed in paragraph (1) of the attached Table 2, evidence No. 1101 through 10, evidence No. 1102-1 through 67 (each criminal trial record), evidence No. 1110-1, 2 (Notice of Decision and Decision of Compensation), evidence No. 1111-1, 2 (Investigation and Research on Fishery Damage Compensation), evidence No. 1113-1, 2, 3 (Saeman District Comprehensive Data and Saemangeum Development Data), evidence No. 2783-1, 2 (Protocol of Fishery Damage Compensation), Eul's evidence No. 1-2 (Final Public Notice and Public Notice of Action Plan for Saemangeum Development Project), evidence No. 2-1, 2, 3 [Public Notice of Decision and Public Notice of Decision of Compensation No. 4] of the original judgment, Public Notice No. 3 (Public Notice of Reclamation License) of the Public Waters Reclamation Project, Public Notice No. 1, Public Notice No. 3 (Public Notice No.

(a) Details of the implementation of the Saemangeum Reclamation Comprehensive Development Project;

(1) On August 13, 1991, the defendant decided that the Saemangeum Reclamation Comprehensive Development Project mainly for the creation of farmland and the development of water will be carried out as part of the Seocho Coastal Development Project, and on August 19, 191, the defendant announced the implementation plan of the Saemangeum Reclamation Comprehensive Development Project (hereinafter referred to as the "Shoman Project") under Article 91-23 of the notification of the Minister of Agriculture and Forestry pursuant to Article 94 of the former Rural Community Modernization Promotion Act (repealed by Article 2 of the Addenda to the Farmland Improvement Association Act (Act No. 5077 of Dec. 29, 195). The main contents are as follows.

(1) Project implementer: Minister of Agriculture and Forestry.

(2) Business purposes: Comprehensive development of reclamation, and development of water resources.

(3) Project area: Gunsan-si (non-gu, eroro-do, internal ero-do), Banan-gun (hereinafter referred to as "Saein-do"), Banan-gun (hereinafter referred to as "Sain-si"), Kim Jong-gun (or gin-si, dead-si, sagin-si, sagin-si, sagin-si, sag), Gan-gun (or gin-si, gin-si, gin-si, gin-

(4) Business area ( reclaimed area): 40,100 M (land development 28,30 Mal., 11,800 Mal.)

(5) Project outlines: 4 of a tide embankment of 33km (4.7km in the west-gun, Yannam-do, 4.7km-do, 9.9km in the 2nd section, 3rd section: Sinsido-si, 11.4km in the 3rd section: 11.7km in the 3rd section: Yando-si, Yando-si, Yando-si, Yando-si, 13 places in the 13rd section.

(6) Project period: 14 years (the outer facilities: from 1991 to 1998, and the internal development: from 1999 to 2004).

(2) After that, the Minister of Agriculture and Forestry, on October 17, 1991, issued a reclamation license for public waters reclamation on the 19 Eup/Myeon/Dong (hereinafter referred to as “instant project zone”) located in the Saemangeum Project pursuant to Article 4 of the former Public Waters Reclamation Act (amended by Act No. 5337, Apr. 10, 1997), and announced it by the Ministry of Agriculture and Forestry No. 91-32, Oct. 22, 1991.

(3) The Minister of Agriculture and Forestry had the project implementation period from November 16, 1991 to December 2, 2004 in accordance with the above Saemangeum Project implementation plan, and had the Governor of Jeollabuk-do branch with the approval of the project implementation plan to delegate the construction work and supervision work of the Saemangeum Project to the Rural Development Corporation (the name of January 1, 200 changed to the Korea Agricultural and Fisheries Corporation) and publicly announced it as prescribed in Article 91-36 of the Public Notice of the Ministry of Agriculture and Forestry. On November 28, 191, the Minister started the construction work of the Saemangeum Project 1 Section of the Saemangeum Project with the public awareness from the Sinan-gun, Gunan-gun, Busan-gun, and the construction work of the 2, 3, and 4 sections work around June 10, 192.

(4) Examining the progress of the above tide embankment construction by each of the above sections, the construction was implemented by the Corporation from the commencement of the above construction to the end of 192 part of 1.8km (m from the side of the port side) from among the above sections of the Section 1 (4.7km). From the beginning of 1993 to the end of 193, the part 1.7km (m from the side of the port side of the Section 1) from among the above sections of the Section 2 of the Section 3 of the Section 3 (2.7km) and the part 0.5km from the above sections of the Section 3 of the Section 1 of the Section 3 (2.7km) (m from the side of the new City/Do) and the part 1.5km from the end of July 25, 1994 to the end of the Section 4m from the end of the Section 4m of the Section 2 of the Section 3 of the Section.

(b) Status of the fishing ground for man-owned fishery;

In the vicinity of the project area of this case, the daily area near the project area of this case has been formed with a wide size of approximately 131,045,000 square meters wide (hereinafter referred to as the "fishing ground of this case"), and there have been natural fish and shellfish living in the project area of this case, including the plaintiffs and the designated parties (hereinafter referred to as the "Plaintiffs"), due to natural fish and shellfish living in the area of this case, such as booms, improvement dogs, bus bars, spawn, and digging, etc., the residents have been gathering natural mountain shellfish shellfishess, such as booms and improvement dogs, using a simple fishing gear in the fishing ground of this case including the plaintiffs and designated parties (hereinafter referred to as "the plaintiffs").

On the other hand, the instant fishing ground is divided into 13 fishing grounds having an area between 1,186,00 square meters and 23,895,000 square meters according to the region. Since there are no special restrictions on fishing activities in each fishing ground, all fishing grounds have been freely selected regardless of village regardless of village. However, under the location conditions of village, the fishing ground used mainly for each village was limited.

C. Plaintiffs’ fishery report

The plaintiffs were residents residing in the project area of this case around October 22, 191, the date of the public waters reclamation license notice of this case, and the plaintiffs 523 persons remaining excluding those 325 persons designated as stated in the attached Table 1 list 325 and 495 persons designated as stated in the attached Table 492 among the plaintiffs 525 persons, excluding those designated as stated in the attached Table 1 list 325 and 495 of the same list among the plaintiffs 525 persons, filed a report under Article 44 of the Fisheries Act (amended by Act No. 5131 of Dec. 30, 195) between September 4, 1991 and June 22, 192 before and after the above public waters reclamation license notice date of this case, and received a certificate of completion of each fishery from the head of Gun respectively (the designated parties, 325, 495, and 201) with no other evidence to prove that they comply with the above subparagraphs 21 and 281.

D. Reasons for the defendant's compensation

(1) On September 19, 191, the Defendant established the Jeollabuk-do Council on Measures for Fisheries comprised of 57 persons, such as the chief of fishing village fraternity, the representatives of fishermen, and university professors, in an area likely to be damaged to present opinions on the determination of the compensation zone and the scope pursuant to Article 89 of the Fisheries Act (wholly amended by Act No. 4252 of Aug. 1, 1990, and amended by Act No. 5131 of Dec. 30, 1995) and agreed on the scope of compensation, compensation amount, method of compensation, etc., as of October 22, 1991, the public waters reclamation license notice date of this case, determined to compensate the legitimate right holder, permitted or reported fishermen of the branch line in the project area of this case as of October 22, 1991, and entered into a research and investigation contract for compensation for fishery damage and Saemangeum Project between the Non-party Military Development Institute and the Korea Marine Development Institute.

(2) From the conclusion of the above service contract to August 1994, the above maritime development institute conducted a survey service for fishery damage. Accordingly, the Defendant secured the budget in order from December 1994 and paid compensation. As to the last hand hand fishery, the Defendant paid compensation to only the person (total of 6,671) who made the first hand hand-on fishery report with the operation area as a branch line in the instant project area prior to the date of the public waters reclamation license notice, and rejected the payment of compensation to the Plaintiffs on the ground that there was no legitimate report on fishery business.

On the other hand, at the time of October 22, 191, 398 fishery licenses (Class 1 fishery business, political net fishery business, joint fishery business, etc.) were established in the name of the fishing village fraternity or individual in the pertinent area with respect to the branch line in the instant business area, but all of the above fishery rights were paid compensation in accordance with the criteria under Article 62 of the Enforcement Decree of the Fisheries Act (amended by Presidential Decree No. 1308, Feb. 18, 1991).

2. The plaintiffs' assertion

The grounds for the claim of this case asserted by the plaintiffs are as follows.

A. The plaintiffs who are residents of the business area of this case have long been living in the fishing area of this case after catching, collecting and maintaining village or bamboo, etc. from the so-called customary fishing right holder under Article 6 subparagraph 2 of the former Public Waters Reclamation Act (amended by Act No. 5337 of Apr. 10, 1997). The defendant is obligated to compensate the plaintiffs for the amount of compensation equivalent to the compensation amount under Article 62 of the Enforcement Decree of the Fisheries Act (amended by Presidential Decree No. 1308 of Feb. 18, 191).

B. The plaintiffs before and after the public waters reclamation license date of this case (O. 22, 191) and within the period stipulated in Article 11 of the Addenda of the Fisheries Act (amended by Act No. 4252, Aug. 1, 1990) and legally reported the last hand hand hand hand over fisheries to the head of the competent Gun within the period stipulated in the Fisheries Act (the amended by Act No. 4252, Aug. 1, 1990) and prohibit the issuance of the certificate of completion of fishing report which unilaterally covers the branch line within the business area of this case without any legal basis around August 1, 1991. As a result, the partial fishing village fraternity and the public official in charge of the Seoan-Gun Office changed the plaintiffs' fishery report form, the plaintiffs' respective fishing report completion certificate was stated in the branch line outside the business area of this case, and despite the above mentioned above part, the defendant still claimed that the above fishermen's compensation amount should be paid to the above fishermen within the business area of this case 199 years without compensation.

C. According to the service result of the above Military Institute for Marine Development of the Korea Military University, prior to the date of the public waters reclamation license notice, the Defendant is obliged to pay the individual compensation to the first grandchildren who received the fishery report certificate for the branch line within the pertinent business area, and the remaining first grandchildren (the first grandchildren who received the fishery report certificate for branch line outside the pertinent business area or did not receive the fishery report certificate) remains the compensation amount for each branch line of the fishing village fraternity. Thus, the Defendant is obliged to pay the individual compensation amount for each branch line of the fishing village fraternity to the Plaintiffs.

3. Determination

A. Determination on a claim for damages caused by a customary fishing right infringement

(1) The parties' assertion

With respect to the plaintiffs' claim for damages equivalent to the compensation for damages caused by the infringement of the customary fishing right on the fishing ground of this case, the defendant asserts that the above plaintiffs' claim is groundless since the fishery right holder did not register it in the fishery right register within 2 years under the Fisheries Act, which was amended by Act No. 4252, Aug. 1, 1990, and enforced from February 1, 1991. Since the plaintiffs did not register it as above, they cannot claim compensation for damages under the premise of the compensation for the fishery right regardless of whether or not the plaintiffs' customary fishing right is recognized. Since the plaintiffs did not do not do so, they did not conduct so-called customary fishing business to collect and sell village or bamboo in the fishing ground of this case at the time of the announcement of the public waters reclamation license of this case.

(2) Relevant laws and regulations and the status of a customary fishing right holder

(A) The Act on the Grounds of Compensation

Article 2 subparagraph 1 of the former Agricultural Community Modernization Promotion Act, which is a basis for the Saemangeum Project, provides that "Land Improvement Project" means the following projects implemented under this Act: (d) of the same Act, and Article 104 of the same Act provides that "The Public Waters Reclamation Act shall apply to the implementation of the project under Article 2 subparagraph 1 (d) of the same Act" (each of the above provisions was deleted by Article 7 (4) of the Addenda to the Rearrangement of Agricultural and Fishing Villages Act (Act No. 4823 of Dec. 22, 1994), and the above former Agricultural Community Modernization Promotion Act or the Rearrangement of Agricultural and Fishing Villages Act shall apply not the former Agricultural Community Modernization Promotion Act, but the same shall apply to compensation for losses caused by reclamation of public waters under the Saemangeum Project (see Supreme Court Decision 96Da32588 of Mar. 28, 1997).

(B) Relevant legal provisions at the time of the enforcement of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990; hereinafter referred to as the "former Fisheries Act"), the concept of customary fishing rights and the status of a person holding a customary fishing right

Article 16 (1) of the former Public Waters Reclamation Act (amended by Act No. 5337 of Apr. 10, 1997) which had been still effective before October 22, 1991, the date of the public waters reclamation license of this case, provides that "any person who has obtained a reclamation license for public waters where he has a right shall compensate for losses or install facilities to prevent such losses under the conditions as prescribed by the Presidential Decree." Article 17 of the same Act provides that "any person who has obtained a reclamation license for public waters where he has a right shall compensate for losses or install facilities under the conditions as prescribed by the Presidential Decree." Article 16 (1) of the same Act provides that "no person who has obtained the reclamation license shall commence construction works until he has suffered losses or facilities under paragraph (1) of the preceding Article: Provided, That this shall not apply where he obtained the consent of the person who has the right to do so, while Article 6 (1) 2 of the former Public Waters Reclamation Act (amended by Act No. 4252 of Aug. 1, 1990) provides that person who has a fishery right under Article 40 of the former Fisheries Act.

Article 40(1) of the former Fisheries Act, which has been recognized in accordance with the above various legal provisions, refers to the right according to the practice of entry into a fish farm (see, e.g., Supreme Court Decisions 9Da12430, Oct. 8, 1999; 99Da5840, 58457, Dec. 28, 1999; 98Da25979, Nov. 12, 1999; 2007Da177, Feb. 16, 2007). In addition, if the above practice of fishery is recognized, it constitutes a tort under Article 17 of the former Public Waters Reclamation Act, regardless of whether a joint fishery right has been established or not, it constitutes a tort under Article 40(1) of the former Fisheries Act, which is not a requirement for a report on fishery business or registration in the original register of fishery rights (see, e.g., Supreme Court Decision 98Da25979, Nov. 12, 199).

(C) the amended Fisheries Act and the Public Waters Reclamation Act

그런데 1990. 8. 1. 빕률 제4252호로 전문 개정되어 1991. 2. 1.부터 시행된 수산업법(이하 '개정 수산업법'이라고 한다)은 위 구 수산업법 제40조 소정의 "입어에 관한 관행"에 관한 규정을 두지 않은 채, 제2조 제6호에서 "'어업권'이라 함은 제8조의 규정에 의하여 면허를 받아 어업을 경영할 수 있는 권리를 말한다."라고 규정하고, 제2조 제7호에서 "'입어'라 함은 입어자가 공동어업의 어장에서 수산동식물을 포획·채취하는 것을, '입어자'라 함은 제44조 규정에 의하여 어업의 신고를 한 자로서 공동어업권이 설정되기 전부터 당해 수면에서 계속적으로 수산동식물을 포획·채취하여 온 사실이 대다수 사람들에게 인정되는 자 중 대통령령이 정하는 바에 의하여 어업권원부에 등록된 자를 말한다."라고 규정하고 있으며, 또한 부칙 제11조(입어자에 대한 경과조치)에서 "이 법 시행 당시 종전의 규정에 의하여 입어자로 등록되어 있는 자는 이 법에 의한 입어자로 본다. 이 법 시행 당시 공동어업의 어장 안에서 입어 관행이 있는 것으로 인정되는 자로서 종전 규정에 의하여 어업권원부에 입어자로 등록하지 아니한 자는 이 법 시행일로부터 2년 이내에 어업권원부에 등록을 한 경우에 한하여 입어자로 본다."고 규정하고 있고, 제44조 제1항에서 "제8조(면허어업), 제41조(허가어업) 또는 제42조(시험 또는 교습어업)의 규정에 의한 어업 외의 어업으로서 수산청장이 정하는 어업을 하고자 하는 자는 어선, 어구 또는 시설마다 시장, 군수 또는 자치구의 구청장에게 신고하여야 한다."고 규정하고 있으며, 수산청 1991. 4. 24.자 고시 제91-9호는 신고어업의 종류와 조업방법을 6가지로 정하고 있는데, 그 중 하나는 맨손어업으로서 그 조업방법은 손으로 낫, 호미, 해조틀이 및 갈고리류 등을 사용하여 수산동식물을 포획·채취하는 어업이라 규정하고 있고, 한편 위 수산업법의 개정에 따라 구 공유수면매립법(1990. 8. 1. 법률 제4252호로 개정된 것)도 제6조 제2호를 "어업권자 또는 수산업법 제2조 제7호의 규정에 의한 입어자"라고 개정함으로써 그 관련 조문을 정리하였다(한편 1995. 12. 30. 법률 제5131호로 수산업법이 개정되면서 공동어업이 마을어업으로 바뀌게 되어 입어에 관한 규정 내용 중 "공동어업"으로 기재된 부분도 "마을어업"으로 바뀌었다).

(D) Sub-committee

① In light of the overall provisions of the amended Fisheries Act and the former Public Waters Reclamation Act (amended by Act No. 5337 of Apr. 10, 1997), in order to be recognized as a right to engage in fisheries in accordance with the practice in a certain public waters after the enforcement of the amended Fisheries Act (amended by Act No. 5337 of Apr. 10, 1991), it is insufficient to say that the fact that a continuous capture and gathering of marine animals and plants in the relevant public waters has been recognized as a right to engage in fisheries, as in the previous public waters, is attributable to the majority of the people. It is insufficient to say that a report on fisheries in accordance with Article 44 of the amended Fisheries Act is required to be filed and a registration is required to be made on matters concerning a joint fishery right register (see, e.g., Supreme Court Decisions 9Da3838, Oct. 10, 197; 9Da35263, Nov. 26, 1999; 9Da373826, May 26, 2000

Meanwhile, the plaintiffs' request for registration in the original register of fishing rights under the revised Fisheries Act is unfair because there is no original register of fishing rights in the case of the fishing ground of this case, and the above revision of the Fisheries Act is against the spirit of the Constitution such as guarantee of property rights, etc. by infringing upon existing fishing rights without any grounds for fishing rights. However, unlike the above revision of the Fisheries Act, according to the provisions of subparagraphs 6 and 7 of Article 2 of the revised Fisheries Act, it is apparent that the fishery owner in a place where a joint fishing right is not established under the above provisions of subparagraph 7 of the above Article 2 of the revised Fisheries Act is not a fishery owner (i.e., a fishery owner in a case of a fishing ground where a joint fishing right is not established under the revised Fisheries Act may report fishery business by practice, but there is no way to register the original register of fishing rights with no joint fishing right established, and thus, it is not clear that the above revision of the Fisheries Act does not clearly violate the previous provisions of Article 901 of the Fisheries Act's interpretation of the Fisheries Act.

Therefore, in the case of this case where the Public Waters Reclamation License and Public Notice were made after the enforcement of the amended Fisheries Act, the plaintiffs' prior compensation or consent under Article 16 of the former Public Waters Reclamation Act (amended by Act No. 5337 of Apr. 10, 1997), which applies to this case, should have completed the registration in the fishery right register at the time of the enforcement of the amended Fisheries Act or completed the registration in the fishery right register within two years from the enforcement date of the amended Fisheries Act. The plaintiffs are those who have not completed the above registration. Thus, the plaintiffs are those who have continued to engage in the fishery of this case in the fishery of this case, or who have the right to receive compensation under Article 16 of the former Public Waters Reclamation Act (amended by Act No. 5337 of Apr. 10, 1997). Therefore, the plaintiffs cannot be viewed as those who have the right to receive compensation under Article 16 of the former Public Waters Reclamation Act.

② If so, the problem is whether the plaintiffs had engaged in fishing activities that constitute a fishing practice under Article 40(1) of the former Fisheries Act before the amendment of the Fisheries Act enters into force, and whether the above amendment of the Fisheries Act and the Public Waters Reclamation Act can recognize the same rights as those recognized in the past in the case where the plaintiffs had acquired a fishing right under Article 40(1)(a) of the Public Waters Reclamation Act at the time of the disposition of the Public Waters Reclamation.

However, as seen earlier, Article 11(2) of the Addenda to the amended Fisheries Act provides a transitional provision on the status of a person who has the previous fishery right. Ultimately, considering the above provision and the relevant provision, the previous person who has the fishery right can maintain the previous right even for two years from the enforcement date of the amended Fisheries Act, notwithstanding the provisions of the amended Fisheries Act, without reporting the fishery business or registering it in the original register of fishery rights. If two years have elapsed since the entry into the original register of fishery rights, there is no room to recognize it as a person who has the fishery right under the amended Fisheries Act only when two years have elapsed since the entry into the original register of fishery rights (see Supreme Court Decision 9Da37382, May 26, 200).

Therefore, in this case, the date of the disposition of the public waters reclamation license (O. 17, 191) of this case, which becomes the point of time of the standard of compensation for fishery rights due to the Saemangeum Project in this case, is apparent from February 1, 1991 when the amended Fisheries Act came into force, and it has been two years since February 1, 1991 when the amended Fisheries Act came into force, and if the plaintiffs were previously engaged in the practice fishing under the former Fisheries Act, the response does not change any change that they maintain their status as compensation recipients regardless of the registration in the fishery right register.

(3) Determination on the plaintiffs' above claims

In light of the above legal principles, if the plaintiffs claim for damages caused by tort as in this case, and if the defendant's act is committed a tort, it should be recognized that the plaintiffs suffered substantial and realistic damage due to the commencement and implementation of the Public Waters Reclamation Corporation in this case before the lapse of the two-year grace period prior to the expiration of the above two-year grace period, even though the plaintiffs were the customary fishery right holder who had been engaged in the practice fishing under Article 40 of the former Fisheries Act in the fishing ground in this case prior to the amendment of the Fisheries Act.

(A) Whether the plaintiffs are customary fishery rights holders

① As seen earlier, in order to establish a customary fishing right under the former Fisheries Act, it should have continuously captured and gathered marine animals and plants for a long time in the relevant fishing ground to the extent that they would be generally accepted for the majority of the people (see, e.g., Supreme Court Decisions 9Da5840, 58457, Dec. 28, 1999). In addition, such customary fishing right is acknowledged as a matter of principle by an independent household, and a certain period for a person who moves from a branch of not more than South and North Korea or a person who moves from a foreign branch is recognized as having a certain period of time, and even in this case, it shall be recognized only for the person who has a labor ability and intention to continue such fishery and reaches the age of 20 to 60 (see, e.g., Supreme Court Decisions 97Da22935, Jul. 24, 198; 97Da41028, Jun. 11, 1999).

Therefore, even though the plaintiffs have long captured and gathered fish, bamboo, etc. in the fishing ground of this case, as seen above, it is insufficient to say that the practice fishing right has a real right effect recognized as a person who has continuously captured and gathered marine animals and plants in accordance with the practice in the joint fishing ground of this case for a long time at the joint fishing ground of this case, and that it has been done for a considerable period of time in order to recognize the practice of such a fishing ground, and it is required that the gathering and gathering of marine animals and plants by accessing the fishing ground of this case by satisfying certain requirements should be done for the majority of people around

② 그런데 원고들이 위 인정의 관행어업권자라는 점을 입증하기 위하여 제출한 증거들에 관하여 보면, (ⅰ)별지 제2목록 제1항 기재 각 증거 중 어업신고필증의 각 기재는, 위 기초 사실에서 본 바와 같이 원고들이 1991. 9. 4.부터 1992. 6. 22.까지 사이에 부안군수에게 맨손어업신고를 하여 조업구역을 이 사건 사업구역 이외의 지선으로 한 어업신고필증을 교부받았다는 내용인데, 비록 원고들 주장과 같이 위 신고필증상의 조업구역이 원고들의 의사와는 달리 불법적으로 이 사건 사업구역 이외의 지선으로 기재된 것이라는 점을 감안하더라도, 위와 같은 신고필증의 교부가 그 기재 내용의 사실 여부에 관한 조사를 전제로 하는 것이 아닐 뿐만 아니라 이 사건 공유수면매립공사가 시작될 무렵에야 집중적으로 발급된 점 등에 비추어 볼 때 선뜻 그 내용대로의 사실관계를 인정하기가 어렵고, 주민등록초본 및 등본의 각 기재는, 원고들이 이 사건 사업구역 안에 거주하여 왔다는 내용에 불과하여 원고들의 관행어업권을 인정할 만한 증거로 삼기 어렵고(앞에서 본 바와 같은 관행어업권의 법리에 비추어 볼 때, 만연히 위 사업구역 안에 거주하는 주민이면 누구나 관행어업을 하여 왔다고 인정할 수는 없을 것이다), (ⅱ) 갑 제1102호증의 30(어업피해보상조사연구), 갑 제1111호증의 1, 2{어업피해보상조사연구(보완판) 및 별책}의 각 기재는 위 기초 사실에서 본 바와 같이 위 군산대학교 해양개발연구소가 1992. 7. 무렵부터 1994. 8. 무렵까지 사이에 실시한 새만금사업에 따른 어업피해 및 보상 등을 위한 연구조사 결과에 관한 내용인데, 그 내용을 보면 위 연구조사는 관행어업권자에 대한 구체적인 대상을 확정하지 아니한 채 이 사건 사업구역 내에서 1991. 10. 22. 이전에 맨손어업 신고필증을 교부받아 맨손어업을 행하는 어업자를 조사범위로 하고 있고(더구나 위 맨손어업자들 중에는 맨손어업이 주업인 자뿐만 아니라 70세 이상의 고령자, 학생 및 기타 직업인, 세대별 다수 신고인 등이 모두 포함되어 있다. 한편, 위 갑 제1102호증의 30은 피고와 전라북도가 위 해양개발연구소의 연구조사 결과를 기초로 하여 작성한 것인데, 그에 따르면 위장전입자, 미거주자, 복역중인자, 국외거주자 등에 대하여까지도 맨손어업자로 등급을 분류해 놓고 있다), 연간 어업생산량 등을 조사함에 있어서도 어촌계나 수협을 통한 위탁판매실적 등에 관한 객관적인 자료가 없어 어장별 현존량 조사를 통한 연간 어업생산량 추정이론에 따라 산정하고 있는바, 이러한 사정 등에 비추어 볼 때, 위 갑 제1102호증의 30, 갑 제1111호증의 1, 2의 각 기재를 원고들의 관행어업권을 인정할 증거로 삼을 수는 없으며, (ⅲ) 원심에서의 부경대학교 수산과학연구소에 대한 감정촉탁결과 및 당심에서의 위 수산과학연구소에 대한 감정보완촉탁결과는, 그 조사방법에 있어, 원고들의 관행어업 종사 여부에 관하여는, 당해 지역의 취업 및 소득구조를 각종 통계자료를 통해 살펴봄으로써 관행어업에 대한 경제적 의존도를 분석하고, 당해 지역의 수산단체와 행정관청을 방문하여 그러한 사실을 청취 조사하였으며, 어장으로부터 원격지에 위치한 부락에 거주하는 원고들을 중심으로 가정을 방문하여 관행어업에 사용되었던 각종 어구 등의 흔적을 찾아냄으로써 관행어업에 종사하였던 사실을 확인하였다는 것이고, 관행어장의 이용실태에 관하여는, 일부 어민들로부터 청취 조사한 내용과 원고들에 대한 설문조사 및 청취조사 내용을 종합하여 파악하였다는 것이며, 관행어업 어장의 생물학적 상태에 관하여는, 위 군산대학교 해양개발연구소의 연구조사 결과를 그대로 원용하였다는 것인바, 위와 같은 조사방법에 비추어 볼 때 위 감정촉탁결과 및 감정보완촉탁결과만으로는 원고들의 관행어업권을 인정하기에 부족하고, (ⅳ) 그 밖에 갑 제1102호증의 1 내지 29, 31 내지 67(각 형사수사기록, 이는 이 사건 사업구역 내에 있는 어촌계들 중의 하나인 계화어촌계가 주민들로부터 받은 맨손어업 신고서를 관할 관청에 접수하는 과정에서 일부 서류가 변조되었다는 등의 행위에 대한 형사수사기록의 일부로서, 대부분 위 행위 관련자 또는 이해관계인들에 대한 피의자신문조서, 진술조서 등이거나, 그 외에 어업보상과 관련하여 발생한 분쟁을 처리하는 과정에서 관할 관청 내부에서 작성한 회의자료나 보고서 등의 서류들이다), 갑 제1114호증의 1 내지 15(각 신문기사)의 각 기재와 원심 증인 소외 1, 소외 2, 소외 3, 소외 4의 각 증언 또한 원고들이 관행어업권자임을 인정할 증거로 삼기에는 부족한 것들이다.

As a result, each of the above evidence alone is insufficient to recognize that the plaintiffs continued to engage in the business of distributing booms and bamboo in the fishing ground of this case for a long time so-called practice fishing right has been established according to fishing practice since it reaches the extent that it would be generally accepted for the majority, and it is also insufficient to recognize that the so-called practice fishing right has been established in accordance with fishing practice. In addition, each of the evidence (each confirmation and evaluation statement) listed in paragraph 2 of the attached Table 2 attached hereto, and the testimony of the non-party

In particular, considering the fact that the practice fishery right is not only a right that can be claimed and exercised by the joint holder of the fishery right even if the joint holder of the fishery right is established on the public waters in question, but also a right that has a real right that can be claimed to exclude the third party who violated the joint fishery right or damages therefrom even if the joint fishery right is not established, in this case, the use of the fishery of this case (which is divided into 13 different fishing grounds) is not restricted domestically and externally as seen in the above basic facts, but also there is no evidence to recognize the plaintiffs' specific period of fishery or the result of trading of catch (the consignment, etc. through fisheries cooperatives or fishing village fraternities). Thus, it is difficult to recognize the plaintiffs as a practice fishery right holder who has engaged in the practice fishery of this case under the provisions of Article 40 of the former Fisheries Act, on the sole basis of the fact that the plaintiffs have captured and gathered marine animals and plants by making the fishery of this case into the fishery of this case.

(3) Therefore, the plaintiffs' assertion that the plaintiffs are customary fishery right holders under Article 40 of the former Fisheries Act in the fishing ground of this case is without merit.

(B) Whether the plaintiffs suffered substantial and realistic damage

① Even if a person who obtained a license for a reclamation project of public waters without compensation under Article 16(1) of the former Public Waters Reclamation Act performed the reclamation project of public waters without compensation under Article 16(1) of the same Act, the implementation of the project immediately does not constitute a tort against the right holder as long as there is no substantial and realistic infringement on the right holder entitled to compensation. Therefore, even in this case, even if the plaintiffs' practice fishery right is acknowledged in this case, it should be recognized that the plaintiffs' practice fishery right was suffered substantial and realistic damage due to the commencement and implementation of the reclamation project of public waters of this case before the expiration of the two-year grace period (2 years from February 1, 1991, the enforcement date of the amended Fisheries Act) in order to constitute tort.

② However, as seen earlier, the Defendant started construction of the Saemangeum Embankment 1 on November 28, 191, and started construction work around June 10, 1992. However, as to whether the Plaintiffs suffered substantial and realistic damage due to the implementation of the above construction before the expiration of the above grace period, according to the statements of No. 1111-1 and No. 2 and the appraisal entrustment, the fishing ground of this case is physically destroyed and cannot be established only with the fishing ground of the side excluded from aiding and abetting. This is based on the premise that the Saemangeum Project was completed as its original plan (business period: from February 1, 1991 to 204) and completed construction of the Saemangeum Embankment 2, 3, and 4, as seen below, it is difficult to recognize that the Plaintiffs suffered actual damage from the above fishing ground due to its actual loss or damage within 193, and there was no other evidence that the Plaintiffs suffered actual loss from the use of the above fishing ground before February 1, 1993.

Rather, the part of the embankment 1.8 km of the embankment 1, 33 km extended between the beginning of the construction work in the above Section 1 and the end of 192 after the commencement of the construction work in the above Section 1,3 km was implemented. Since around July 25, 1994, the construction of the stone embankment 1,3 dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump. As seen earlier, it was without significant change in each catch of the evidence as seen earlier.

(3) Therefore, even if the plaintiffs' practice fishery right is recognized, the above practice fishery right has expired since the grace period of the above two years has not elapsed since the plaintiffs did not have actual and actual damage despite the commencement and implementation of the reclamation project of public waters of this case. Therefore, the above claim for damages by the plaintiffs is without merit in this regard.

B. Determination on damages claim for violation of reported fishery

(1) The parties' assertion

Under Article 44 of the Revised Fisheries Act, the plaintiffs asserted that they were liable to compensate the amount of compensation for losses because they caused losses to the plaintiffs by executing the reclamation of public waters of this case without fulfilling their obligation to compensate for losses even though they had a duty to compensate for losses. Accordingly, the defendant did not report legitimate fishing under Article 44 of the Revised Fisheries Act with respect to the first hand hand-on fishery in the main line within the business area of this case. Thus, the above assertion by the plaintiffs is without merit.

(2) Determination:

(A) From September 4, 191 to June 22, 1992, before and after October 22, 1991, the public waters reclamation license of this case was announced by 525 Plaintiffs 325 and 495, the rest of the Plaintiffs 523, excluding the designated parties, and 523, respectively, and the head of the Gun issued a letter of completion of each fishery report for five years from the date of receipt of each report. The above facts are as follows.

(B) However, if a project operator, who is obligated to compensate for losses to fishermen who were engaged in fisheries lawfully reported within a public waters reclamation project zone, does not perform the duty of compensation for losses and thereby actually and practically infringed upon the reclamation of public waters, this constitutes a tort (see, e.g., Supreme Court Decisions 98Da11529, Nov. 23, 199; 9Da37382, May 26, 2000).

However, in light of the purport of Article 44 (2) of the revised Fisheries Act, which provides that the starting point of starting the effective period of a report on fisheries shall be the date of receiving the report, and the purport of Article 33 (1) of the Enforcement Decree of the Fisheries Act, which provides that the person who reported the fisheries may reduce the effective period if necessary, violates the measures of an administrative agency taken by the public interest needs, the report on fisheries issued at the time of receiving the report on fisheries shall be recovered. In light of the purport of Article 33 (1) of the revised Enforcement Decree of the Fisheries Act (amended by Presidential Decree No. 15241 of Dec. 31, 1996), the report on fisheries under Article 44 of the revised Fisheries Act shall be deemed to be a "report requiring acceptance" which takes effect only after the acceptance of the administrative agency (see Supreme Court Decision 9Da37382 of May 26, 200), and even if the plaintiffs asserted that there was an unlawful act, it shall not be a legitimate ground for the amendment of the Fisheries Act as to the pertinent area.

In addition, since a report on fisheries on a certain public water surface after the public notice of the reclamation license is made under the premise that the restriction on the reported fishery is already objectively determined after the execution of the reclamation project of the public water surface and the restriction on the reported fishery, a person who reported fisheries after the public notice of the reclamation license of the public water surface is made shall not be deemed to have suffered special losses due to the implementation of the reclamation project of the public water surface, unlike the person who completed the previous report (see, e.g., Supreme Court Decisions 98Da11529, Nov. 23, 199; 9Da37382, May 26, 2000); and the above assertion among the plaintiffs by the person who reported fisheries after October 22, 191 is without merit.

(C) Therefore, the plaintiffs' assertion on the premise that there is a legitimate fishing report under Article 44 of the amended Fisheries Act regarding the branch line within the instant business area is without merit.

C. Determination on the claim for compensation for each branch of fishing village fraternity

The plaintiffs asserted that the defendant is obligated to pay the compensation amount for each fishing village fraternity branch line left to the majority grandchildren including the plaintiffs (the first grandchildren who did not complete the lawful fishery report) according to the service result of the Korea Marine Development Institute of the Korea Military University. However, since the above compensation amount for each fishing village fraternity branch line of the plaintiffs' assertion is merely an evaluation by the service agency, barring special circumstances such as the defendant's agreement to pay the above compensation amount to the above first grandchildren, the above service result alone does not create a claim for the above compensation amount. However, there is no evidence to prove that the defendant agreed to pay the above compensation amount to the above first grandchildren, and there is no evidence to prove that the above first grandchildren agreed to pay the above compensation amount (the result of the fact-finding inquiry by the court below on the Director of the Saemangeum Marine Development Support Center of the Korea Saemangeum Marine Development Institute, it can be recognized that the Minister of Agriculture and Forestry did not approve the payment of compensation amount for each fishing village village branch line.).

D. Determination on other allegations

In addition, the plaintiffs argued that the failure of the plaintiffs to compensate for losses is against the spirit of the Constitution and the Fisheries Act, legal equality, and principle of trust protection, etc. although they are engaged in the first hand fishery and suffered losses due to the implementation of the Saemangeum Project. However, as seen in the above basic facts, in relation to the implementation of the Saemangeum Project, the defendant has prepared a compensation plan for the right holder under Article 16 of the former Public Waters Reclamation Act and legitimate permitted and reported fishery operations in the branch line in the project area of this case, and conducted the budget continuously, and it is unclear whether only some fishermen, including the plaintiffs, who claimed compensation for losses, are excluded from the compensation list because it is unclear whether they are the persons eligible for compensation for losses. Accordingly, the defendant's implementation of the Saemangeum Project without compensation for losses to the plaintiffs who are judged to be unclear, cannot be viewed as unlawful since the defendant's implementation of the project cannot be seen as a tort (in addition, the above plaintiffs cannot be seen as being legally reported to legitimate fishermen and fishermen of reported fishery business under Article 16 of the former Public Waters Reclamation Act or Article 4 of the Fisheries Act.

In addition, the plaintiffs also asserted that it is improper that the defendant paid compensation to the majority of the residents who do not meet the compensation requirements while making compensation due to the Saemangeum Project, but did not pay compensation on the ground that the plaintiffs who actually carried on the first hand fishing in the branch line within the project area of this case applied the compensation-related Acts and subordinate statutes strictly and did not complete the fishery report. However, even if the defendant paid compensation to the residents who do not meet the compensation requirements stipulated in the relevant Acts and subordinate statutes, it is merely that the defendant voluntarily paid compensation at his own expense, and as seen earlier, it cannot be deemed that the right holder under Article 16 of the Public Waters Reclamation Act, or the right holder under Article 44 of the amended Fisheries Act, or the right holder under Article 44 of the amended Fisheries Act, cannot be deemed to be the first hand fishermen who cannot be deemed to have completed the lawful report of fishery business

4. Conclusion

Therefore, the claim of this case against the defendant of this case shall be dismissed as it is without merit. Since the part against the plaintiffs in the judgment of the court below is justified in its conclusion, the plaintiffs' appeal shall be dismissed and it is so decided as per Disposition.

Judges Park Ha-young (Presiding Judge)