[1] Purport of prohibiting the lease of fishery rights under the Fisheries Act, and whether a person, other than a member of a fishing village fraternity, can exercise the fishery right under the name of the fishing village fraternity and collect the fees in the same manner as allowing a person, other than a member of the fishing village fraternity, to use the business of the

[2] The validity of a contract concluded by a fishing village fraternity with a person who is not a member of the fishing village fraternity on the fishery right which is not a communal fishery right (negative)

[1] The purpose of Article 33 of the Fisheries Act prohibiting the lease of fishery rights is to maintain the foundation of the fishery license system established under the purpose of enabling a person who is willing to own the fishery to operate the fishery by dividing and exclusively using the relevant waters and by protecting his interests from a third party, and to prohibit a person who does not exercise his/her fishery right to use the fishing ground, and to enable a person who is not a member of the fishing village fraternity to exercise his/her fishery right in the same manner as allowing a person who is not a member of the fishing village fraternity to use the business of the fishing village fraternity, and to collect the fees therefor, it would be unreasonable to interpret that the lease of the fishery right in the name of the fishing village fraternity would be practically widely permitted, and that this would go beyond the fundamental purpose of the Fisheries Act prohibiting the lease of the fishery right.

[2] Article 37 (1) of the Fisheries Act provides that the fishery right owned by a fishing village fraternity shall be exercised by the members of the relevant fishing village fraternity under the conditions prescribed by the fishing ground management rules, except that a person who is not a member of the community fishing right, if the person who is not a member of the community fishing right satisfies the requirements set forth in each subparagraph of the same paragraph. In light of this provision and the fundamental purport of the Fisheries Act prohibiting the lease of the fishery right, a contract for exercising the fishery right concluded by a fishing village fraternity with a person who is not a member of the community fishing village fraternity

[1] Article 33 of the Fisheries Act / [2] Articles 33 and 37 (1) of the Fisheries Act

[1] Supreme Court Decision 94Do2458 delivered on November 10, 1995 (Gong1995Ha, 3962) Supreme Court Decision 95Do2604 delivered on June 28, 1996 (Gong199Ha, 2427)

Plaintiff (Attorney Shin-chul et al., Counsel for plaintiff-appellant)

Defendant fishing village fraternity (Law Firm International, Attorneys Kim Tae-tae et al., Counsel for the defendant-appellant)

Busan High Court Decision 2006Na8474 decided Dec. 15, 2006

The part of the judgment of the court below concerning the conjunctive claim is reversed, and that part of the case is remanded to Busan High Court.

We examine the grounds of appeal.

Article 33 of the Fisheries Act prohibits the lease of fishery rights under the same Act. The purport of Article 33 of the same Act is to maintain the foundation of the fishery license system established under the purpose of enabling a person who is willing to self-employed to engage in fishery by dividing and diverting the relevant waters and by protecting his interests from a third party, and to prohibit a fishery right holder from collecting so-called absent areas without his/her own fishery right and allowing a person who is not a member of a fishing village fraternity to use his/her fishing village fraternity's business, and to interpret that a person who is not a member of a fishing village fraternity can exercise the fishery right under the name of the fishing village fraternity and collect the fees therefor in the same manner as allowing a person who is not a member of the fishing village fraternity to use the fishing village fraternity's business. This would result in the de facto widely allowing the lease of the fishery right under the name of the fishing village fraternity. It would be unreasonable to reverse the fundamental purpose of the Fisheries Act prohibiting the lease of the fishery right (see Supreme Court Decision 94Do2458, Nov. 10, 1995).

In addition, Article 37 (1) of the Fisheries Act provides that a fishery right owned by a fishing village fraternity shall be exercised by the members of the relevant fishing village fraternity under the conditions as prescribed by the fishing ground management rules, except that a person who is not a member of the community fishing right can exercise the community fishing right if the person who is not a member of the community fishing right satisfies the requirements set forth in each subparagraph of the same paragraph. In light of this provision and the fundamental purport of the Fisheries Act prohibiting the lease of the fishery right, a contract for exercising the fishery right concluded by a fishing village fraternity with a person other than a member

According to the reasoning of the judgment below and the records, the fishery right of this case owned by the defendant fishing village fraternity is not a community fishery right, but a fish, etc., and the plaintiff is not a member of the defendant fishing village fraternity. The agreement that the defendant delegates the fishery right of this case to the plaintiff on January 19, 198 as to the plaintiff on January 19, 1998, half of the fishing ground of this case from 1998 to 2010, shall be deemed null and void since the agreement that the defendant delegates the fishery right of this case to the plaintiff on January 19, 198 is not a contract for exercising the fishery right

On the contrary, the court below erred by misapprehending the legal principles on Articles 33 and 37(1) of the Fisheries Act, thereby adversely affecting the conclusion of judgment.

Therefore, the part of the judgment below regarding the conjunctive claim is reversed, and that part of the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Hong-hoon (Presiding Justice)