Nowon-gu fishing village fraternity (Attorney Park Jong-ok, Counsel for the plaintiff-appellant)

Nowon-gu Busan High Court Decision 201Na4884 decided May 1, 201

August 12, 2016

Gwangju District Court Decision 2014Gahap3188 Decided November 11, 2015

1. The judgment of the first instance as to the part accepting the Plaintiff’s claim under paragraph 2 below is revoked.

2. It is confirmed that the following sea areas between the Plaintiff and the Defendant are the Plaintiff’s business territory:

(a) Part excluding the sea areas in the form portion written in the annexed Table 2, among the sea areas indicated in the annexed Table 2, where the heading point of the parallel of lat. 126.31 east.27 east, 34.13 08.170 east. east. 126.310 east. east.26.310 east. east. 34.34.310 east. east. 34.15 east. 17 east. east 126.31 east. 41.22 east. 31 east. 31.22 east. 34. 17 east. 27.9430 east of the same map (the point to which the same drawing is indicated) are successively connected to the two sub-section mal areas along which the heading maled

나. 동경 126도 30분 48.59711초, 북위 34도 13분 07.77185초 지점(별지4 사진 표시 ㉱지점)과 동경 126도 31분 40.92568초, 북위 34도 13분 08.31758초 지점(같은 사진 표시 ㉲지점)을 연결하는 직선의 남쪽이면서 동경 126도 31분 40.92568초, 북위 34도 13분 08.31758초 지점(위 ㉲지점)과 동경 126도 31분 16.38388초, 북위 34도 11분 46.04572초 지점(같은 사진 표시 ㉳지점)을 연결하는 직선의 서쪽인 해역

3. The plaintiff's remaining appeal is dismissed.

4. Of the total litigation costs, 70% is borne by the Defendant, and 30% by the Plaintiff, respectively.

The judgment of the first instance is revoked. The defendant confirms that the west sea area in the straight line connecting the parallel of lat. 126°31 16.38 east. 16.31 east, 34°11 46.04572 east and 126.33 east, 07.90 east, and 34°16 41.80 east, 41.80780 east is the plaintiff's work zone.

1. Basic facts

A. Status of the parties

1) As the Plaintiff and the Busan Metropolitan City fishing village fraternity came into effect on April 1, 1962, the Plaintiff and the Busan Metropolitan City fishing village fraternity were respectively established as a fishing village fraternity belonging to the Nowon-do Fisheries Cooperatives, which is the district fisheries cooperatives at the time, and as a result, the Nowon-do Fisheries Cooperatives was established in 1972, it became a fishing village fraternity affiliated with the Sejong-do Fisheries Cooperatives by absorbing it. The Plaintiff was as it is from the head of the relevant Gun around November 22, 2010, and the Busan Metropolitan City fishing village fraternity was divided into the Defendant and the Sam-do Fishing village fraternity (the business district: the business district was amended by Act No. 10245, Apr. 12, 2010) and obtained authorization for the establishment under Article 15 and Article 4 of the Enforcement Decree of the Fisheries Cooperatives Act.

2) The plaintiff (title: fishing village fraternity at the time of authorization for its establishment: the plaintiff's articles of incorporation) refers to "members of the Nowon-gu in Seoul Special Metropolitan City and the defendant (title: fishing village fraternity at the time of authorization for its establishment) refers to "members of the Nowon-do Special Metropolitan City, Nowon-do Special Metropolitan City, Nowon-do Special Metropolitan City" as their respective business areas.

3) From among the attached Form 3 satellite photographs unloading in the Yando-gun of Yando-gun in the administrative district, it is only one member of the area of the Dong-dong area in the same Dong-dong area in the attached Form 1 of the same attached Form, which is the Yando-do-Manan Island, the Maando-Maando, and the Yando-do-Yando-si, and the area of the Dong-dong area in the same region as the Yando-si. The name in the

(b) the conclusion of the 1985 Agreement;

1) On September 27, 1985, the following agreements (hereinafter “1985 Agreement”) were entered into between six representatives (in total of three representatives of the Pari-ri and three representatives of the Pari-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-si and three representatives of the Pari-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-si:

1. The limit of a fish farm which has been neglected in the main text shall be determined as follows: (a) the limit of a fish farm which has been neglected to fluoral gly gly gly gly gly gly gly gly gly gly gly gly gly gly gly gly gly gly gly gly gly gly gly gly gly gly gly gly gly gly gly glybly gly gly gly gly gly gly gly gly gly gly gly

2) The Inter-Korean Limit Line on the above Agreement (hereinafter referred to as the “Inter-Korean Limit Line”) is the straight line (the straight line connecting the two points at the parallel 126.31 minute 16.388 seconds, the parallel 34°11°46.0472 seconds north latitude and the parallel 126°33°33°09 seconds north latitude and the parallel 34°16°16°870 seconds north latitude and the parallel 34°16°16°37.37°37.37°37.47°37.75' East latitude and the parallel 126°37.37' East latitude and the parallel 47°37.47' East latitude and the parallel 47°37.75°37' East latitude and the parallel 40' East east longitude in the direction of the parallel of annexed 4 airlines.

(c) Opening of rail lines (new routes) and conclusion of the 1990 Agreement;

1) Around 1990, residents around this day used the “old-sea route,” which leads to a fishing port from a inland sea to a fishing port (hereinafter referred to as the “sea route”) in order to grow on land, to use the “gal-sea route,” which leads to a fishing port from a inland sea to a fishing port (hereinafter referred to as the “gal-sea route”) (a vessel capable of transporting freight, such as vehicles, etc.) around the point where the South and Northwest Limit Line and the Eastwest Limit Line were plucked and run towards the northwest at the point where the northwest Limit Line and the Eastwest Limit Line came to the northwest. In addition, since around 190, a steel vessel, from the point of 1990, was operated as a route close to the straight line (hereinafter referred to as the “new line”) (the approximate location between the new sea route and the old sea route as shown in the annexed Table 5).

2) On August 30, 1990, four representatives of fishing village fraternities and four representatives of fishing village fraternities in the Nowon-do, Nowon-do (hereinafter “190 Agreement”) entered into an agreement with the following contents (hereinafter “190 Agreement”).

1. Table 1 contained in the text of this Agreement is to enter into an agreement between the fishing village fraternity and the American fishing village fraternity. 2. The term "Sari-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri (:

(d) A fishery license for the head of complete Gun;

On May 8, 2012, pursuant to Article 2(7) of the Enforcement Decree of the Fisheries Act (amended by Presidential Decree No. 24455, Mar. 23, 2013), the head of the relevant Gun publicly announced “the development plan for the use of fishing ground of 2012”. The Plaintiff renounced two previous fishery licenses (license number: No. 11493, No. 12620, Apr. 9, 2013; 20 square meters: hereinafter the same shall apply for two fishery licenses as indicated in the following table, and obtained such fishery licenses from the head of the relevant Do Gun on April 16, 2013.

The term of license for the area of a variety of fishery rights holders, located in the main text, 20 p.m., Plaintiff 13357, Apr. 16, 2013, including Plaintiff 13357, Apr. 16, 2013 to Apr. 15, 2023, Plaintiff 13358, Apr. 16, 2013 to April 15, 2023, including Plaintiff 13358, Apr. 16, 2013 to April 15, 2023

A person shall be appointed.

(e) the conclusion of the 2013 Agreement;

On August 9, 2013, the representative (including the head of a village) of the plaintiff and the representative of the defendant (including the head of a village) entered into an agreement (hereinafter referred to as the "2013 Agreement") with the following contents.

On August 30, 1990 (the third day, in the case of a clerical error), a license was obtained from a license to remove the current facilities within the earlier date, but the license was not required due to the licensing relationship, and it would be a matter of consultation with the license of the United States, although the license was obtained from a license to remove the current facilities within the earlier date, on August 7, 2013.

F. The defendant's civil petition filing and the revocation and reduction of the head of the Gun;

1) Around August 2013, the Defendant’s representative, etc. visited the Nowon-do Seoul Special Metropolitan City Office and filed a civil petition with the effect that it is unreasonable for the Do Do Gun to grant a fishery license to the Plaintiff on April 16, 2013.

2) On December 16, 2013, the head of complete Gun issued a disposition to revoke or reduce a license for fishery business already granted to the Plaintiff on the ground that the former case constitutes a fishery business license under Article 35 subparag. 1 of the Fisheries Act (amended by Act No. 11690, Mar. 23, 2013) (amended by Act No. 11690, Mar. 23, 2013) after undergoing hearing procedures with respect to Nonparty 1, the head of the fishing village fraternity at the time of the Plaintiff’s filing of the disposition.

According to the terms of the 13357 agreement in 1990, the disposition of the reason for the disposition of the ticket number issued in the main text, which was included in the 13357, the part (third) is the defendant's business territory, and pursuant to the 13358 agreement in 190, the 1990s agreement, the 3th 133

3) The sea level in which the head of Gun completely or partially cancelled or reduced the license for fishery business against the Plaintiff (hereinafter “instant disputed sea area”) is located on the north of the west Limit under the Agreement, 1985, and is located on the north of the Southern Limit Line.

G. Administrative litigation against the plaintiff's completion of construction work

The plaintiff filed a lawsuit against the head of Gwangju District Court 2014Guhap10158 for revocation and reduction of a fishery license and is currently pending in the lawsuit.

(h) Current status of the disputed sea area;

At present, the Defendant’s aquaculture facilities are installed from the new sea route to the west of about 570 meters, and the remainder of the sea area (including the part exceeding 570 meters away from the new sea route) except for the part where the Defendant’s aquaculture facilities are installed.

【In the absence of dispute over the grounds for recognition, Gap evidence 1 through 4, Gap evidence 5-1 through 9, Gap evidence 7, 11 through 28, Eul evidence 1 through 32, Eul evidence 1, 5, and 7, the contents and images of the evidence of the first instance trial, the witness of the first instance court, non-party 2, non-party 3, non-party 1, and non-party 4's testimony, the result of the on-site inspection by the court of the first instance and this court, the result of the expert examination by non-party 5 of the first instance

2. Judgment on the defendant's main defense

A. The defendant's main defense

After a disposition of revocation of a fishery license or fishery license has been taken in relation to the business area, the Plaintiff would seek revocation of the fishery license or dispute as to whether the business area falls under the business area in the administrative litigation seeking revocation of the fishery license. If there is a dispute over only the business area regardless of the fishery license itself, it would be resolved by filing an application for authorization of modification of the articles of incorporation with the head of Si/Gun who is the person with authority to approve the amendment of the fishing village fraternity articles and dissatisfied with the subsequent disposition. Therefore, filing a judgment on confirmation of the business area against the Defendant, who is a fishing village fraternity, cannot be deemed the most effective and appropriate means to remove the risks and omissions existing in the Plaintiff’s rights or legal status, and thus, there is no benefit of confirmation of the instant lawsuit. Meanwhile, since the Plaintiff and the Defendant’s association’s right to authorize the articles of incorporation and the licensing authority of the fishery license all complete the business area, the Defendant

B. Determination

1) Recognized facts

In full view of the facts acknowledged above and admitted evidence, the contents stated in Gap evidence Nos. 45 and 46, the fact-finding results of this court's fact-finding and the overall purport of arguments, the following facts are recognized.

① As the Plaintiff’s and the Defendant’s articles of incorporation generally indicate that the business territory of the Plaintiff and the Plaintiff’s respective business territory is “Seoul-do Nowon-do, Chungcheongnam-do, a member of the Eupndo,” and “Seoul-do, Chungcheongnam-do, Chungcheongnam-do, a fishing village fraternity does not set the scope of specific business territory by its articles of incorporation, using longitude or latitude. Each fishing village fraternity has the limitation on the business territory between fishing village fraternities through an agreement, etc. with neighboring fishing village fraternities if the scope of business territory arises between fishing village fraternities. On the other hand, the maritime boundary of the horse administration region, such as “Seoul-do, Eupn-do,” and “Seoul-do, Eupn-do,” is not set.

② In addition, the head of Jeondo also established a fishing village fraternity by designating the Plaintiff’s business territory as “members of Jeondo-gun-do-si, Jeondo-nam-do-si,” and the Defendant’s business territory as “members of Jeondo-do-do-Eup, Jeondo-do-Eup, whereas the boundary of the business territory between the Plaintiff and the Defendant is required to comply with the agreement concluded between them.

③ The head of complete Gun granted each fishery license to the Plaintiff and the Defendant within the scope of the business territory stipulated in the agreement between the Plaintiff and the Defendant. On April 16, 2013, the head of complete Gun issued two fishing licenses (No. 13357 and No. 13358) granted to the Plaintiff on the ground that the two fishing licenses (No. 13357 and No. 1358) were out of the Plaintiff’s business territory under the agreement

2) Determination

According to the above facts, since the scope of the specific business area between the Plaintiff and the Defendant is not determined by the head of complete Gun, but determined by the agreement between the Plaintiff and the Defendant, one of them can request confirmation of the scope of the business area against the other party when a dispute arises in relation to the scope of the business area, and this is the most effective and appropriate means to eliminate the existing risks and omissions in the rights or legal status of the parties (as alleged by the Defendant, in the administrative litigation seeking revocation of the fishery license or seeking revocation of the fishery license, it is not a fundamental means to resolve disputes in that it does not constitute a business area. However, it is not a means to resolve disputes in that the administrative litigation seeking revocation of the fishery license or seeking revocation of the fishery license, as argued by the

In this case, the facts that a dispute arises between the Plaintiff and the Defendant regarding the scope of the business territory are as seen earlier, and therefore, the Plaintiff has legal interest in filing a lawsuit against the Defendant for confirmation of the scope of the business territory of the Plaintiff. Accordingly, the Defendant’s main defense of safety

3. Judgment on the merits

A. Summary of the parties' assertion

1) Summary of the Plaintiff’s assertion

The Plaintiff and the U.S.ri (referring to the word "S.i., the word "T.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.ri.) concluded an agreement in 1985.

However, the Defendant asserted that the Plaintiff temporarily managed the sea area, and filed a civil petition to revoke the Plaintiff’s license for fishery business thereon, and subsequently, rescinded the agreement in 190 with the service of the preparatory document dated March 8, 2015, on the ground that the Plaintiff rescinded the agreement. As such, the instant agreement was concluded in accordance with the Agreement in 1985, the instant agreement constitutes the Plaintiff’s business area.

2) The defendant's argument

In 1985, the Plaintiff and the Defendant concluded an agreement between the Plaintiff and the Defendant on the following grounds: (a) the Plaintiff’s business territory: (b) the area of the north and South Korea Limit Line’s business territory; (c) the area of the East and North Korea’s business territory is the west and the north of the East and South Korea Limit Line’s business territory; and (d) the area of the north and South Korea’s business territory is the west and the north of the East and North Korea Limit Line’s business territory. However, (e) the new route established around 1990 after the renewal of the license number(Attachment 2, 5707 before the fishing license number is see, e.g., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the Defendant’s business territory.

B. Determination

1) Comprehensively taking account of the facts acknowledged earlier and the overall purport of the evidence and arguments adopted earlier, it is recognized that the Plaintiff and the Defendant entered into an agreement in 1990 to establish a new business territory, so the business territory of the Plaintiff and the Defendant shall be determined in accordance with the 1990 agreement. In this regard, the Plaintiff asserted that the agreement was rescinded in 1990, but the Plaintiff and the Defendant’s business territory are determined in a final and conclusive manner as follows. Thus, if the Defendant violated this, the Plaintiff could claim damages against the Defendant on the ground that it could be possible for the Plaintiff to claim damages against the Defendant, but the agreement in 190 itself cannot be rescinded.

2) In light of the following circumstances, the facts acknowledged earlier and the overall purport of the evidence and arguments adopted earlier, the Defendant’s business territory stipulated in the 1990 agreement, among the sea areas north of the East and South Korea Limit Line, is a sea area up to 300 meters from the west from the west line to the west (350 meters from the center line of the new line, since the west line is 100 meters wide, 350 meters from the west line) and the Plaintiff’s business territory is the remainder. Meanwhile, the Plaintiff’s business territory is the Plaintiff’s business territory pursuant to the agreement of 1985, both the west and the west line.

① As seen earlier, since the establishment of a new route around 1990 as a result of the establishment of a new route, the agreement between the Plaintiff and the Defendant was concluded in 190. Article 1990 of the 1990 Agreement provides that “The distance between the upper end and the lower end of the passenger line shall be 60 meters, and shall be 100 meters after the Kim-type establishment.” Paragraph (4) of the 1990 Agreement provides that “at the upper end of the agreed route, the passenger line shall be 300 meters from the US fishing village fraternity and its lower side shall be managed by the fishing village fraternity,” and that “the other side of the agreed route” under Paragraph (4) of the 1990 Agreement shall be interpreted as “the passenger line”, namely, the new route shall be interpreted as the area of the Plaintiff’s business as the area of the new route, so long as it is reasonable to view the “the upper end of the agreed route” as the area of the Plaintiff’s business as the area of the new port shall be within 30 meters.

② In addition to the 1990 Agreement, there is no text suggesting that the boundary of the business territory between the Plaintiff and the Defendant has been set on the basis of the old route.

③ At around 1988, the U.S. fishing village fraternity was divided into Defendant and Sammari fishing village fraternity (it was administratively divided into two separate fishing village fraternities in 2010), and even around 1985, the separation transfer took place only with the fishing village fraternity, and the village was changed. At the time of the 1985 agreement, three copies of the agreement were equally participated, and three copies were equally prepared and kept, respectively. In light of the fact that the 1985 agreement should be seen as the agreement between Plaintiff, Defendant, and Sammari fishing village fraternity.

Therefore, it is reasonable to view that the agreement in 1985 determined the boundaries of business areas between the Plaintiff and the Defendant and the Sammari fishing village fraternity as well as the boundaries of business areas between the Defendant and the Sammari fishing village fraternity. In this regard, the Plaintiff asserted that the South and North Korean Limit Line of the agreement in question is the boundary of business areas between the Plaintiff and Sammari fishing village fraternity, and that the same boundaries are the criteria to determine the boundaries of business areas between the Defendant and the Sammari fishing village fraternity. The Defendant asserted that the same line is only the base date set forth in the Plaintiff’s business areas north and did not set the boundaries between the Defendant and the Sammari fishing village fraternity in the agreement in question. In addition, in light of the above circumstances, the Plaintiff’s assertion appears to be consistent with the truth. In addition, Article 190 of the agreement in 190, “the passage between the Defendant and the Sammari fishing village fraternity in question (the passage shall be equivalent to 200 meters) is still set at the boundary between the Defendant and Sammari.”

Ultimately, it is reasonable to view that the South-North Limit Line of the 1985 Agreement is the criteria for determining the boundaries of business areas between the Plaintiff and the Busan Fishing Village fraternity, as alleged by the Plaintiff, and that the East-west Limit Line is the criteria for determining the boundaries of business areas between the Defendant and the

④ The Defendant’s license number No. 5707, South and North Korea (current number No. 12621) asserts that it was possessed from September 21, 1984 on the north and South Korea Limit Line was located in a place far away from North Korea. This is not only a fishery license granted by the Defendant but also a fishery license granted by Nonparty 6, etc., a village resident of the Defendant, and the Defendant succeeded to it later. Furthermore, the above fishery license was granted in around 1984, prior to the conclusion of the 1985 Agreement. Accordingly, the argument that “the instant dispute was entitled to obtain the said license because it was the Defendant’s business area according to the 1985 Agreement,” cannot be established. Accordingly, with the existence of the above fishery license, it cannot be evaluated as the Defendant’s business area.

(5) The head of complete Gun granted a fishery license only in the business area in which an agreement has been reached between fishing village fraternities. Before the instant case, the Plaintiff had obtained two fishery licenses (license number: No. 11493, No. 12620, No. 12620, respectively) from the head of complete Gun in the instant disputed sea area.

3) Meanwhile, in the case of the instant disputed sea area 12621, the 1985 Agreement and the Agreement in 1990, “Nonindicted 6, etc.” was operated by the Defendant upon obtaining a fishery license (No. 5707, e., e., the 1985 Agreement and the Agreement in 1990), and later, the fact that the Defendant succeeded to that was currently holding the license is no dispute between the parties, and thus, the said fishery license cannot be deemed included in the Plaintiff’s business territory.

4) 그렇다면, 원고의 청구는 ① 동서한계선의 북쪽이면서 신항로를 기준으로 서쪽으로 300m에 달하는 지점[신항로 중심선(별지1 도면의 붉은색 주1) 곡선) 으로부터 서쪽으로 350m에 달하는 지점]의 서쪽 해역[동경 126도 31분 27.1037초, 북위 34도 13분 08.1740초 지점(같은 도면 표시 ㉮지점)과 동경 126도 31분 44.3110초, 북위 34도 15분 17,6957초 지점(같은 도면 표시 ㉯지점) 및 동경 126도 31분 41.1222초, 북위 34도 17분 27.9430초 지점(같은 도면 표시 ㉰지점)을 순차 연결하는 같은 도면 기재 연두색 곡선의 서쪽 해역] 중 면허번호 완도 제12621호 양식장 부분의 해역을 제외한 나머지 부분과 ② 동서한계선의 남쪽이면서 남북한계선의 서쪽인 부분[동경 126도 30분 48.59711초, 북위 34도 13분 07.77185초 지점(별지4 위성사진 표시 ㉱지점)과 동경 126도 31분 40.92568초, 북위 34도 13분 08.31758초 지점(같은 사진 표시 ㉲지점)을 연결하는 직선의 남쪽이면서 동경 126도 31분 40.92568초, 북위 34도 13분 08.31758초 지점(위 ㉲지점)과 동경 126도 31분 16.38388초, 북위 34도 11분 46.04572초 지점(같은 사진 표시 ㉳지점)을 연결하는 직선의 서쪽인 해역]에 대한 업무구역의 확인을 구하는 범위 내에서 이유 있다.

4. Conclusion

The plaintiff's claim shall be partially accepted within the scope of the above recognition. Since the judgment of the court of first instance is unfair with different conclusions, the judgment of the court of first instance as to the part for which the plaintiff's claim is accepted is revoked and the plaintiff's claim as to that part is accepted, and the remaining appeal by the plaintiff is dismissed

[Attachment]

Judges old-gu (Presiding Judge)

Note 1) The annexed Form 1 is about the north part of the Eastwest Limit Line (the upper part of the horizontal line among the photographs attached in attached Form 4). The lower street line is the Eastwest Limit Line, red vertical lines are the centerline of the new line, and the color line is 350 meters away from the centerline of the new line.