The meaning of “finite practice” under Article 40 of the former Fisheries Act

Article 40 of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990) provides that a fishing practice is a common time for the majority of the people by catching or gathering marine animals and plants from a fishing place for a long time before the establishment of a common fishing right for any fishing place without a license for fishery business.

Article 40 of the former Fisheries Act, Article 16 (1) of the Public Waters Reclamation Act

Supreme Court Decision 69Da173 decided Mar. 31, 1969 (No. 17 ① 408)

Plaintiff 1 and 16 Plaintiffs, Attorneys Kim Han-sung, Counsel for the plaintiff-appellant

Jin-gun:

Daejeon High Court Decision 93Na1426 delivered on August 13, 1993

All appeals are dismissed.

The costs of appeal are assessed against the plaintiffs.

We examine the grounds of appeal.

Article 40 of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990) provides that a fishing practice by catching or gathering marine animals and plants from a fishing place for a long time prior to the establishment of a joint fishing right for any fishing place without a license for fishery business, which led to the extent that it would generally be done to the majority of people (see Supreme Court Decision 69Da173 delivered on Mar. 31, 1969).

According to the reasoning of the judgment below, the court below rejected the plaintiffs' assertion that the plaintiffs are responsible for compensating for losses suffered from the reclamation project of this case on the premise that the plaintiffs are the right holder of fishing village under Article 40 (1) of the former Fisheries Act, since the plaintiffs are not the right holder of fishing village village fraternity as members of the fishing village village fraternity, and the fishery right of the above family village fraternity already expired at the time when the defendant obtained approval for reclamation of public waters, the plaintiffs are not the joint holder of fishing village fraternity, and therefore there is no right to receive compensation under Article 16 of the Public Waters Reclamation Act, and each testimony of the witness 1 and 2 of the first instance court witness of the first instance court is insufficient to recognize that they are the right holder of fishing village under Article 40 (1) of the former Fisheries Act. Thus, the court below did not err in the misapprehension of legal principles of Article 6 (2) of the former Public Waters Reclamation Act, but did not have a right to receive compensation under Article 40 (1) of the former Fisheries Act, since it did not have any reason to determine that the plaintiffs' right to receive compensation under Article 140 (1) of the former Fisheries Act.

In addition, the argument that the defendant shall pay compensation under the provisions of Article 75 (1) of the former Fisheries Act and compensate for damages caused by illegal acts cannot be a legitimate ground for appeal because all of the arguments asserted up to the original trial. There is no reason for both the arguments.

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing plaintiffs. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Sang-won (Presiding Justice)