[1] The legal nature of the claim for compensation for losses under Article 81 of the Fisheries Act due to the restriction on licensed fishery due to the necessity of public interest and whether the claim for compensation for such losses is a civil lawsuit (affirmative)

[2] Whether the provisions on the procedure for compensation under Articles 61 and 63 of the Enforcement Decree of the Fisheries Act stipulate the necessary procedure for filing a lawsuit (negative)

[1] Article 81 (1) 1 of the Fisheries Act, which applies mutatis mutandis under Article 16 of the Inland Fisheries Development Promotion Act, provides that a person who suffers loss due to a disposition such as restricting licensed fisheries due to a reason for the public interest necessity under Article 34 (1) 1 through 5 of the same Act, or due to a failure to permit an extension of the validity period of a fishery license, may file a claim for compensation with the administrative agency. Even if a disposition, etc. on such a fishery license falls under an administrative disposition, the loss due to such disposition is the intrinsic substance of the fishery right, which is the right under private law, and the right to claim compensation is not the right under private law, but the right under private law. Therefore, even if the administrative agency refuses to claim compensation or determines the amount of compensation, a person who intends to claim compensation shall not file an administrative lawsuit against it, but shall make a claim for compensation directly for the public action against the local government or the State, the right holder of the right to which the administrative agency (or the requesting administrative agency) that made the disposition belongs.

[2] Even if Article 61 and Article 63 of the Enforcement Decree of the Fisheries Act (amended by Presidential Decree No. 8168, Apr. 4, 2006) stipulate procedures for filing compensation claims, payment decision, notification, etc., according to delegation of Article 81(4) of the same Act, the purport of the provision is to stipulate internal procedures for administrative agencies to perform the obligation to pay compensation for losses incurred under Article 81(1) of the same Act, and it cannot be deemed that the provision provides necessary procedures

[1] Article 16 of the Inland Fisheries Development Promotion Act; Articles 34 and 81(1) of the Fisheries Act; Article 3 of the Administrative Litigation Act; Article 226 of the Civil Procedure Act / [2] Article 81(4) of the Fisheries Act; Articles 61 and 63 of the Enforcement Decree of the Fisheries Act

[1] [2] Supreme Court Decision 90Da8978 delivered on April 26, 1991 (Gong1991, 1488) Supreme Court Decision 94Nu12050 delivered on January 26, 1996 (Gong1996Sang, 793)

Plaintiff

Do Governor of Chungcheongbuk-do

Daejeon High Court Decision 94Gu840 delivered on September 30, 1994

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Article 81 (1) 1 of the Fisheries Act, which applies mutatis mutandis under Article 16 of the Inland Fisheries Development Promotion Act (hereinafter referred to as the "Act"), provides that a person who suffers losses due to a disposition such as restricting licensed fisheries due to a reason for public interest needs under Article 34 (1) 1 through 5 of the Act, or due to an extension of the validity period of a fishery license not permitted, may claim compensation from the administrative agency. Even if the disposition of such fishery license is subject to an administrative disposition, losses due to such disposition are essential contents of the fishery right, which is a right under the private law, and thus, the right to claim compensation is not a right under the private law, but a right under the private law. Accordingly, even if an administrative agency refuses to claim compensation or determines the amount of compensation, a person who intends to claim compensation pursuant to Article 81 (1) 1 of the Act shall not file an administrative lawsuit against it, but a person who is a local government (or the government requesting the disposition) belonging to the administrative agency or the local government (or the government requesting the disposition) shall claim compensation directly for civil action.

In addition, even if Article 61, Article 63 of the Enforcement Decree of the Act provides procedures for filing a request for compensation, payment decision, notification, etc. according to delegation of Article 81(4) of the Act, the purport of the provision is to stipulate internal administrative procedures for performing the obligation to pay compensation for losses incurred under Article 81(1) of the Act, and it cannot be deemed that the provision provides necessary procedures for filing a lawsuit.

In the same purport, the court below's rejection of the plaintiff's claim of this case seeking the revocation of the return of compensation claim due to administrative litigation is just, and there is no error in the misapprehension of legal principles as to the nature of claim

2. Therefore, the appeal shall be dismissed and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Yong-hun (Presiding Justice)