[1] In a case where a lawsuit against the appointed party is withdrawn or the judgment becomes final and conclusive, whether the appointed party loses his/her qualification (affirmative)

[2] The scope of a person permitted to compensate for or compensate for damages due to the execution of a public project on public waters and the criteria for determining the scope of the reported person

[3] The case holding that where a power plant construction project is deemed to be a single public project en bloc, a person who obtains a new fishery permit after the restriction on the use of public waters within the electric power resource development business area may not be deemed to have suffered special losses as to the use of public waters within the above area on the ground that an additional facility was constructed on the site of the electric power plant

[1] Article 53 of the Civil Procedure Act / [2] Article 750 of the Civil Act / [3] Article 750 of the Civil Act

[1] Supreme Court Decision 2006Da28775 Decided September 28, 2006 (Gong2006Ha, 1815) / [2] Supreme Court Decision 2000Da72404 Decided February 26, 2002 (Gong2002Sang, 797)

Plaintiff 1 and 36 others (Attorney Yellow-il, Counsel for the plaintiff-appellant)

Korea Electric Power Corporation’s taking-off (Law Firm Tae Tae, Attorneys Jeon Sung-mok et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2002Na54747 delivered on June 17, 2005

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

1. Prior to determining the grounds of appeal, we examine the validity of the designated party’s selection act and the scope of the Appellee.

Since the designated parties under Article 53 of the Civil Procedure Act should be selected from among many persons who have common interests, the designated parties shall be deemed to lose their qualification as a matter of course in the event a joint interest relationship terminates due to the withdrawal of a lawsuit against the designated parties or the final judgment becomes final and conclusive (Supreme Court Decision 2006Da28775 Decided September 28, 2006).

On the other hand, 38 persons listed in the [Attachment List of Appointeds (the part of the claim by the remaining persons other than the above 38 persons was withdrawn at the time of filing a lawsuit) in the judgment of the court below which brought the lawsuit against the defendant are selected as the appointed party and had them conduct the lawsuit. As a result, as to the remaining 37 persons except the appointed party (name omitted), all or part of the claim amount by each appointed party shall be accepted in the judgment of the court below and the claim by the above (name omitted) shall be dismissed. Although the defendant appealed against the part of the judgment of the court below against the defendant among the judgment of the court below, it is clear that the part against the plaintiff (appointed party) in the judgment of the court below became final and conclusive as it is because the plaintiff (appointed party) did not file an appeal.

Thus, since the appointed party (name omitted) at the court below decided against himself and lost his status as the designated party due to the extinguishment of a common interest relationship, the act of selecting (name omitted) at the court below as the designated party is null and void. Ultimately, the scope of this case-Appellee is 37 persons other than (name omitted) among 38 persons in the court below.

2. The grounds of appeal are examined.

A. As to the first ground for appeal

If the executor of a public project obligated to compensate for losses and actually infringes on any third party by executing a public project without compensating for losses, it constitutes a tort. However, if the operator of a public project is able to claim compensation for losses or damages due to the implementation of the public project, it should be deemed that the fishery operator of the public waters has suffered damages due to the implementation of the public project, or be engaged in the fishery business as the lawful licensed fishery operator or the reported fishery operator at the time of the implementation of the project. If the fishery business has already been granted or reported after the implementation of the public project and the restrictions on the permission or reported fishery business have already been determined objectively and objectively after the implementation of the public project, unlike the person who completed the fishery business or the reported business, it is premised on such restrictions. Thus, even if the interests of the fishery operator are reduced due to the implementation of the public project, unlike the person who already completed the fishery business or the reported business, it cannot be claimed for compensation for losses or damages. In such case, whether the fishery business permit or the reported public project is limited should be based on the relevant fishery permit or the relevant report.

According to the above legal principle, in the case of seeking compensation for damages against the defendant, who is the litigant of the above power plant and port construction project operator of Korea Electric Power Corporation (hereinafter “Korea Electric Power Plant”), in order to determine whether the plaintiffs are in the status of seeking compensation for damages, the time when compared to the point of time of the fishery permission, namely, the time of approval and announcement of the implementation plan for the implementation of the construction project of the instant power plant, in order to determine whether the plaintiffs are in the status of seeking compensation for damages, the date of approval and announcement of the implementation plan for the implementation of the construction project of the instant power plant, should first be first determined, in order to determine whether the plaintiffs are in the position of seeking compensation for damages, in other words, the date of approval and announcement of the implementation plan for the implementation of the construction project of the instant power plant of this case, which is the time of the fishery permission.

As to this point, the court below held that since the construction project implementation plan for the fixed industrial base development project, which was originally approved by the Minister of Construction and Transportation on March 19, 1980, was related to the construction of the power plant Nos. 1, 2, 3, 4 and 6 of this case, and the approval of the power source development project for the machinery Nos. 3 and 4 was separately made on March 25, 198 and was publicly announced on April 6, 198, and the construction plan of Nos. 5 and 6 was additionally determined on May 22, 1990 and approved by the Minister of Construction and Transportation on March 22, 190, the court below held that since construction project of the power plant Nos. 1, 2, 3, 4 and 5 and 6 of this case was all separate public projects, the plaintiffs should individually be determined on whether a third party engaged in the construction project as a result of the construction project at the time of the enforcement date of each construction project (the plaintiffs No. 5 6. 196).

However, we cannot agree with the judgment of the court below that each construction project of the 3, 4 and 5 and 6 units of the power plant of this case constitutes a separate public project for the following reasons.

According to the records, Han Electric Power Resource Development Co., Ltd., was required to expropriate the above land outside the development zone in the process of establishing a construction project plan for additional construction of Nos. 3 and 4 of this case to a fixed industrial base development zone. It was approved by the Minister of Electric Power Resource Development on March 25, 198 pursuant to Article 5 of the former Act on Special Cases Concerning Electric Power Source Development (amended by Act No. 4541, Mar. 6, 199; hereinafter the same shall apply) and the implementation plan for electric Power Resource Development Project was announced on April 6, 198, and thereafter the former Enforcement Decree of the Electric Utility Act (amended by Act No. 4214, Jan. 13, 199; hereinafter the same shall apply) 3. It was not required to obtain an additional construction plan for Electric Power Resource Development Project from the Minister of Construction No. 196, May 1, 198; 196.

If so, among the plaintiffs, the new fishery permit was granted after the restriction on the use of public waters within the electric power resource development project zone was imposed by the announcement of the implementation plan for the construction project of the electric power plant Nos. 3 and 4 of this case on April 6, 1988 among the plaintiffs, and the new fishery permit did not incur special losses as to the use of public waters within the electric power resource development project zone since the construction period Nos. 5 and 6 was additionally constructed on the site of the electric power resource development project of this case. However, the court below deemed that the plaintiffs who obtained the fishery permit after April 7, 198 were incurred such special losses and accepted their claims in whole or in part. Accordingly, the judgment of the court below in this part is erroneous in the misapprehension of legal principles as to the scope of the permitted fishery right holder subject to the compensation for losses or damages as alleged in the ground of appeal No. 1, which affected the conclusion

B. Regarding ground of appeal No. 2

As to the plaintiffs' fishery damage caused by the construction project of the power plant, etc. of this case, the court below determined that since 192, the number of navigations in the zone where the temporary navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigation.

However, it is difficult to accept the judgment of the court below for the following reasons.

As recognized by the court below, even if the number of large vessels entering or departing from the fixed port through the zone for installation of the instant sign board in 191 increased by 416 times more than that of the preceding year, even if the number of such large vessels increased by 196 times thereafter, [this case’s 200Da72404, supra] was included in evidence No. 4 (the court below’s 991) but the portion of the court below’s ordering compensation for fishery damage was reversed by the court below for 1991 on the basis of “the number of vessels entering or departing from the fixed port during 1991, increased by 97Da72404, which would have been difficult to conclude that the number of vessels used to be the basis for such fact-finding was 19 years since 199, and that the number of vessels used to be 9 years ago increased by 197Da99999, the number of appraisal reports adopted by the court below for the first time after 2000Da72404964.

The judgment of the court below which recognized that the number of large vessels entered and depart from a fixed port through the zone for installation of the private sign of this case has increased more than twice the previous year, and as a result, the plaintiffs' catch has decreased considerably since 1992, resulting in damages exceeding the limit of admission. It did not exhaust all necessary deliberations and erred by misapprehending the rules of evidence, and by misapprehending the legal principles on causation between tort and damages, which affected the conclusion of the judgment. Thus, the second ground for appeal pointing this out is justified.

Therefore, among the judgment below, the part which wholly or partly accepted the plaintiffs' claims that were engaged in fisheries with legitimate fishery permission at the time of notification of the implementation plan for the construction project of the electric power plant Nos. 3 and 4 of this case on April 6, 1988 cannot be exempted from the reversal.

3. Conclusion

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

Justices Lee Hong-hoon (Presiding Justice)