[1] The point of time of determining the annual interest, which serves as the basis for calculating compensation in cases where compensation for the extinction of fishing right is calculated under the Enforcement Decree of the Fisheries Act (=the time of extinguishment of fishing right)

[2] In a case where the annual interest at the time of calculating compensation for the termination of a fishery right and the annual interest at the time of the termination of the fishery right thereafter are changed, whether the amount of compensation shall be re-calculated according to the annual interest at the time of termination

[1] According to Article 4(1) and (2)3 of the Enforcement Decree of the Special Act on the Compensation for Public Loss, Article 2-10(7) of the Enforcement Decree of the Special Act on the Compensation for Public Loss, Article 23(1) of the former Enforcement Decree of the Special Act on the Compensation for Public Loss, and Article 23(1) of the former Enforcement Decree of the Special Act on the Compensation for Public Loss (amended by Ordinance of the Ministry of Construction and Transportation No. 3 of January 7, 1995), the assessment of losses due to the extinguishment of fishing rights due to the implementation of a public project shall be made pursuant to Article 62 of the Enforcement Decree of the Fisheries Act. Therefore, the amount of compensation due to the extinguishment of fishing rights due to the implementation of a public project shall be calculated pursuant to Article 62(1)1(a) of the Enforcement Decree of the Fisheries Act, and Article 62(1)1(a) of the Enforcement Decree of the Fisheries Act provides that the amount of compensation for the extinguishment of fishing rights due to the implementation of a public project shall be applied.

[2] Since the annual interest at the time of the extinguishment of the primary fishery right cannot be expected to be the result of calculating the amount of compensation under Article 62 of the former Enforcement Decree of the Fisheries Act (amended by Presidential Decree No. 13910 of Jun. 19, 1993), the annual interest at the time of calculating the amount of compensation cannot be applied under the premise that there is no change in the annual interest at the time of calculating the amount of compensation. However, in a case where there is a change in the annual interest at the time of the extinguishment of fishery right, the amount of compensation shall be calculated again by applying the annual interest at the time of the extinguishment of fishery right under this provision as a matter of course, and the annual interest at the

[1] Article 4 of the Special Act on Compensation for Public Loss and Loss, Article 62 (1) 1 (a) of the former Enforcement Decree of the Fisheries Act (amended by Presidential Decree No. 13910 of Jun. 19, 193) / [2] Article 4 of the Special Act on Compensation for Public Loss and Loss, Article 62 (1) 1 (a) of the former Enforcement Decree of the Fisheries Act (amended by Presidential Decree No. 13910 of Jun. 19, 193)

Gu-Eup fishing village fraternity and 21 others (Attorneys Lee Hong-ro et al., Counsel for the plaintiff-appellant)

New Airport Construction Corporation (Seoul General Airport Law Firm, Attorneys Kang Hong-ju et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 95Na31975 delivered on July 31, 1996

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. According to the reasoning of the lower judgment, the lower court acknowledged the following facts by comprehensively taking account of the evidence presented.

A. On September 2, 191, the Ministry of Transport and Maritime Affairs concluded a service contract between the Korean maritime research institute selected by the non-party Incheon Fisheries Cooperatives (hereinafter referred to as the “ Incheon Fisheries Cooperatives”) representing the fishery right holders, such as the plaintiff fishing village fraternity and the remaining plaintiff, to compensate for the fishery damage caused by reclaiming public waters in order to create the new airport site, which became final and conclusive by the Young-gu Incheon Central Airport Construction Site.

B. On July 24, 1992, the non-party Korea Airport Corporation (hereinafter only referred to as the "non-party") which is the implementer of the new airport construction project, entered into an agreement on the procedures for and methods of compensating for damages to the plaintiffs' fishery rights on July 24, 1992, the non-party Corporation's property, rights, and obligations related to the new airport construction project pursuant to Article 5 of the Addenda to the New Airport Construction Corporation Act, promulgated by Act No. 4779 of August 3, 1994, and the plaintiff fishing village fraternity and the Incheon Suhyup Cooperatives shall be assessed by the Korea Maritime Research Institute. The service period shall be within 13 months after the conclusion of the service contract, and the service period shall be extended by up to 2 months due to the circumstances of the Korea Maritime Research Institute. The service related to the "survey on the impact of fishery rights and calculation of compensation amount due to the new airport construction" shall be considered as the service under this agreement, but the service shall be deemed as the commencement of the service contract within 30 days after the conclusion date of this agreement.

C. The Korea Institute of Maritime Affairs and Research extended the service period once with the approval of the Ministry of Transport and Transport, but received the result of the service on November 30, 1992 to the Ministry of Transport and Maritime Affairs through the Ministry of Transport, and on December 5 of the same year, the Ministry of Maritime Affairs and Research notified the Incheon Suhyup on the receipt of the receipt and confirmed whether the result of the service was performed in accordance with the directions of the operation, and then paid compensation after confirming whether the result of the service was performed in accordance with the directions of the operation. On March 4, 1993, the Ministry of Maritime Affairs and Research notified the Incheon Suhyup and the Plaintiff fishing village fraternity of the detailed statement of calculating the amount of compensation, the fishery loss compensation agreement, and the letter of waiver of the fishery right.

D. According to Article 62(1)1(a) of the Enforcement Decree of the Fisheries Act (amended by Presidential Decree No. 13910, Jun. 19, 1993; hereinafter the same shall apply), the compensation details notified by the Nonparty Corporation shall be calculated by the formula of the "annual profit ± annual interest ± 0.8 + residual value of the public structure - the sales revenue amount of the public structure - annual revenue. The average interest rate of one-year deposit in a commercial bank located in Seoul, the annual interest rate of which is 10% per annum until January 25, 1993, is 10% per annum until January 26, 1993; and 8.5% per annum on March 26, 199.

E. Upon the reduction of the annual interest rate as above, on March 16, 1993 and on the 19th of the same month, the Incheon Suhyup notified the non-party Corporation that it requires the adjustment of compensation due to the annual interest reduction and that the compensation notified by the non-party Corporation should be received as advance payment, and on April 6 of the same year, upon the reduction of the annual interest rate, the head of the division of the non-party fishing village fraternity stated the issue of re-resolution of compensation due to the annual interest reduction to the non-party 1 and the non-party 2, who is the person in charge of the non-party corporation's compensation. The non-party 1 requested the relevant agency to interpret the additional compensation due to the annual interest change, which received this and promised to notify the plaintiffs by May 31 of the same year when the internal policy of the non-party corporation was determined.

F. Meanwhile, during the period from March 12, 1993 to April 13 of the same year, the rest of the Plaintiff’s fishing village fraternity except for the Plaintiff’s Gwangju Fishing Village fraternity shall hold a general meeting of shareholders on October 11, 1993 to report the waiver of the fishery right and receive compensation as a result of the service ( Plaintiff 13 delegated the right to receive compensation to the Plaintiff Young-dong Fishing Village fraternity. Plaintiff 14 and eight other Plaintiffs except the Plaintiff’s fishing village fraternity and 13 shall attend the general meeting of the members of the fraternity in question and passed a resolution for the waiver of the fishery right and the receipt of compensation money to the Plaintiff, the rest of the Plaintiffs except for the Plaintiff Gwangju Fishing Village fraternity from April 12, 1993 to May 13 of the same year, and the Plaintiff’s non-party 1 and the Plaintiff’s non-party 2, excluding the Plaintiff’s non-party 1 and the Plaintiff’s non-party 4, respectively, received the Plaintiff’s non-party 1 and the Plaintiff 1 and the new fishing Village.

G. The agreement for compensation for fishery loss prepared and submitted by the plaintiffs is based on Article 2, Article 5(1) of the Act, and Article 5(1) of the Act provides that as long as the plaintiffs receive compensation under a contract, they shall interfere with the implementation of the business of the non-party Corporation or shall not raise an additional civil objection and civil objection. The non-party Corporation shall be deemed to have completed the business of compensating for fishery rights to the plaintiffs by remitting compensation, and the agreement for compensation for fishery loss shall be kept in the state where the non-party president of the Corporation has no seal.

H. On May 31, 1993, the non-party Corporation notified the Plaintiffs of whether to grant additional compensation related to annual reduction or not, and notified the Plaintiffs that it still waits for authoritative interpretation on July 10 of the same year. On September of the same year, the Non-party Corporation notified the purport that it cannot make additional compensation based on the position of the relevant agency, etc.

2. Based on the above factual basis, the lower court determined as follows: (a) the agreement dated July 24, 1992 entered into by the Plaintiffs cannot be deemed as falling under the "contract that can acquire or use the land, etc." as stipulated in Article 4(1) of the Act on Special Cases Concerning the Compensation for Public Loss (hereinafter referred to as the "Special Cases Concerning the Compensation for Loss"); and (b) the agreement between the Plaintiffs and the non-party Corporation constitutes a fishery loss compensation agreement that terminates the fishery right through consultation between the Plaintiffs and the non-party Corporation; (c) the non-party Corporation shall be deemed to have approved the fishery loss compensation agreement when the non-party Corporation remitted the compensation to the Plaintiffs; (d) the compensation to the Plaintiffs shall be calculated by applying 8.5% per annum per annum at the time of receiving the compensation; and therefore, (e) the Defendant is obligated to additionally pay the difference between the compensation calculated by applying 8.5% per annum

A. Since a public project executor's act of acquiring the fishery right necessary for the project is nothing more than a private trade act conducted as the subject of the private economy, it can determine the amount of compensation, etc. without following the standards of compensation for losses under the Act on Special Cases at the time of the acquisition by agreement between the parties. In light of the agreement of July 24, 192, the basic contents concerning the procedure for compensation for damages, the method of calculating the amount of compensation and the method of compensation, etc. are relatively detailed, it constitutes "a contract under Article 4 (1) of the Act on Special Cases Concerning the Acquisition or Use of Land, etc.", and the fishery compensation contract is merely an auxiliary agreement concluded to conclude the compensation procedure, such as specifying the specific amount of compensation according to the service results of the Korea Institute of Maritime Affairs and Fisheries.

B. At the time of concluding the agreement between the plaintiffs and the non-party Corporation on July 24, 1992, the service organization for the investigation of damages and the calculation of compensation amount were selected as the Korea Institute of Maritime Affairs and agreed to comply with the scope of damages and the amount of compensation assessed by the Korea Institute of Maritime Affairs and Fisheries. In addition, as long as Korea Institute of Maritime Affairs and the non-party Corporation decided to comply with the result of the evaluation of the fishery loss compensation contract, the standard point of calculating compensation amount should also be the time when the Korea Institute of Maritime Affairs and the Korea Institute of Maritime Affairs calculates the compensation amount within the service period under the agreement. If the actual payment date is viewed as the basic date of calculating compensation amount, as alleged by the plaintiffs, the calculation of compensation amount can not be the result that the calculation of compensation amount can vary depending on the difference between the parties to whom the compensation payment is to be made, it is reasonable to view that Korea Institute of Maritime Affairs and Research as the basis of calculating compensation amount for the plaintiffs' compensation amount calculated by applying the annual output from 190 to 192.

3. However, it is difficult to accept the above judgment of the court below in the following respect.

A. The court below held that the agreement between the plaintiffs and the non-party Corporation on July 24, 1992 constituted "a contract that can acquire or use land, etc." as stipulated in Article 4 (1) of the Act on Special Cases concerning the Settlement of Land, etc., it seems that the conclusion date of this agreement under the Act on Special Cases concerning the Settlement of Land, etc. should be the base date for calculating compensation for the plaintiffs, and therefore, it should be calculated by applying 10% per annum at that time.

However, according to Article 4(1) and (2)3 of the Act on Special Cases concerning the Settlement of Fisheries, Article 2-10(7) of the Enforcement Decree of the same Act, and Article 23(1) of the Enforcement Decree of the same Act (amended by Ordinance of the Ministry of Construction and Transportation No. 3 of Jan. 7, 1995), since the evaluation of losses incurred in the extinction of fishing rights due to the implementation of public works is governed by Article 62 of the Enforcement Decree of the Fisheries Act, the amount of compensation for losses incurred due to the extinction of fishing rights due to the implementation of public works shall be calculated pursuant to Article 62 of the Enforcement Decree of the Fisheries Act (see Supreme Court Decision 90Da1833, Jun. 11, 1991). Article 62(1)1(a) of the Enforcement Decree of the Fisheries Act provides that the method of calculating compensation in cases where fishing rights become extinct due to the implementation of public works, the amount of compensation for the plaintiffs shall be deemed as the date of disposition in which compensation is calculated according to the annual amount of compensation.

B. The court below's decision that the executor of a public project can agree on the amount of compensation not in accordance with the standard of compensation under the Act on Special Cases concerning the Settlement of Losses due to the agreement between the parties. However, according to the records, when entering into an agreement between the plaintiffs and the non-party Corporation on July 24, 1992, the scope of compensation and the amount of compensation are only agreed to follow the investigation and evaluation conducted by the Korea Maritime Research Institute, and the "investigation into the impact of fishery rights damage and calculation of compensation amount due to the construction of new Seoul Metropolitan Area Airport" provided for in this agreement is to calculate the amount of compensation under Article 72 of the former Enforcement Decree of the Fisheries Act (wholly amended by Presidential Decree No. 1308 of Feb. 18, 191), which falls under Article 62 of the former Enforcement Decree of the Fisheries Act (wholly amended by Presidential Decree No. 1308 of Feb. 18, 191). Accordingly, the Korea Maritime Research Institute's agreement on July 24, 1992>

C. The court below pointed out that the calculation of the amount of compensation would result in the calculation of the amount of compensation based on the time when the fishery right had not yet arrived, and that the annual interest applied among the fishery rights holders would vary. However, even though Article 62 of the Enforcement Decree of the Fisheries Act provides that the annual interest at the time when the amount of compensation is calculated cannot be anticipated in reality because the annual interest applied to the calculation of the amount of compensation cannot be anticipated, so that there is no change in the annual interest at the time when the amount of compensation is calculated, the court below should, as a matter of course, re-calculated the amount of compensation by applying the annual interest at the time when the fishery right was extinguished, and it cannot be viewed that the annual interest applied among the fishery rights holders would vary.

4. In addition, the lower court recognized that the Plaintiffs submitted a fishery loss compensation contract and received compensation without objection, stating that they did not raise any additional claim for compensation or civil objection, after reporting the waiver of the fishery right to receive the “fishing right and compensation” and resolving to receive compensation based on the service result. However, it is also difficult to accept this point.

In light of the records, the decision that the plaintiffs reported the waiver of the fishery right to receive compensation, which is the "fishing right and compensation," which the plaintiffs agreed to give up the fishery right first, can be seen as a resolution premised on the waiver of the claim for additional compensation due to the annual reduction. In addition, the language and text of the decision of the court below stated in the fishery loss compensation contract are printed in the same letter. However, as determined by the court below, the non-party notified the non-party Corporation of the intention to receive the compensation notified by the non-party Corporation, asserting that the Incheon Suwon may need to adjust the amount of compensation due to annual reduction twice in advance, as determined by the court below, as well as prior to the plaintiffs' receipt of the compensation (the first instance court recognized that the non-party fishing village fraternity received the compensation on March 30, 1993). However, according to the statement of evidence No. 3-7 adopted by the court below, according to the court below, it is reasonable to deem that the non-party fishing village fraternity received the additional amount of compensation by the non-party governor's receipt of compensation.

5. Nevertheless, the court below held that the non-party Corporation paid compensation calculated by applying 10% per annum of the year at the time when the Korea Marine Research Institute calculated the amount of compensation within the service period pursuant to the agreement on July 24, 1992 to the plaintiffs, and that the plaintiffs cannot file a claim for additional compensation based on the annual interest that has been reduced thereafter. Thus, the judgment of the court below is erroneous in the misunderstanding of legal principles as to calculation of compensation under the Act on Special Cases, or in the misunderstanding of facts due to the violation of the rules of evidence, and therefore

6. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is 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 on the bench.

Justices Cho Chang-hun (Presiding Justice)