[1] The standard for calculating the amount of damages in a case where a person having fishery right suffers damages by executing a reclamation project of public waters without fulfilling the duty of compensation for losses

[2] Where a public waters reclamation project is implemented without a compensation procedure for damages to a permitted holder, the time when the tort is established

[3] The case affirming the judgment of the court below that the agreement between the plaintiff and the plaintiff was valid since fishermen received compensation for losses in light of the method of investigating fishery losses and the method of calculating the amount of compensation, compensation procedure, compensation amount, etc.

[1] In a case where a project operator fails to perform his/her duty of compensation and thereby causes damage to fishermen engaged in permitted fisheries due to the implementation of a reclamation project of public waters which could inflict damage on fishermen engaged in permitted fisheries in public waters, and thereby the fishermen are unable to engage in permitted fisheries, Article 81(1) of the Fisheries Act, which stipulates the duty of compensation for losses when the fishery permit is revoked or suspended, shall apply mutatis mutandis to compensation for such damage. In this case, the amount of compensation shall be calculated based on the enforcement date of the reclamation project of public waters.

[2] Even if a project operator obligated to compensate for losses did not fulfill the duty of compensation for losses and performed a construction project for reclamation of public waters which is capable of causing damage to fishermen engaged in the permitted fishery in the public waters to the extent that the public waters could not engage in the fishery, the tort is not immediately established only by the commencement of the project, but only established when the project actually and practically infringed upon the project. Specifically, the date of establishment of the tort is not the time when the reclamation right holder begins the reclamation of public waters but the fishermen are unable to engage in the permitted fishery any longer according to the construction progress, and the result of cancellation of the fishery permit occurs.

[3] The case affirming the judgment of the court below that the agreement between the plaintiff and the plaintiff was valid since fishermen received compensation for losses in light of the method of investigating fishery losses and the method of calculating the amount of compensation, compensation procedure, compensation amount, etc.

[1] Article 750 of the Civil Code, Article 81 (1) of the Fisheries Act / [2] Article 750 of the Civil Code, Article 81 (1) of the Fisheries Act / [3] Article 248 of the Civil Procedure Act

[1] [2] Supreme Court Decision 200Da16893 Decided September 25, 2001 (Gong2001Ha, 2320), Supreme Court Decision 2003Da32162 Decided May 14, 2004 (Gong2004Sang, 983) / [1] Supreme Court Decision 99Da38705 Decided April 10, 2001 (Gong201Sang, 1081) / [2] Supreme Court Decision 98Da52858 Decided September 17, 199

Plaintiff (Appointed Party) (Attorney Jeong Jong-eng et al., Counsel for the plaintiff-appointed party-appellant)

Republic of Korea (Attorney Kim Jong-chul et al., Counsel for defendant-appellee)

Seoul High Court Decision 2002Na13784 delivered on November 22, 2002

The appeal is dismissed. The costs of appeal are assessed against the Plaintiff (Appointed Party).

1. As to whether the compensation for losses is disadvantageous to the plaintiff et al.

A. The judgment of the court below

According to the reasoning of the judgment below, the court below held that the defendant, the implementer of the Saemangeum Reclamation Comprehensive Project (hereinafter referred to as the "Samanman Project"), based on the adopted evidence, held a council of measures against fishing village fraternities, representatives of fishermen, professors, etc. in an area likely to suffer damage in order to consult about compensation issues for the implementation of the Saemangeum Project on September 26, 1991, and agreed on the scope of compensation, compensation amount, methods of compensation, etc., the court below decided that the defendant was not only an institution specialized in fishing damage and compensation assessment due to the reclamation work of this case, but also an institution which was selected by the Council of the Korea National Institute of Maritime Development (hereinafter referred to as the "Research Institute") to pay compensation according to the results of the appraisal of the plaintiff's marine life, including the plaintiff's plaintiff and the designated persons who were engaged in fisheries within the project area, and it seems that the above research institute did not unilaterally receive compensation from the Council of 195.25.72 of the above appraisal and determination of compensation amount.

(b) The base point for calculating the amount of compensation for losses;

(1) In a case where a project operator fails to perform the duty of compensation and thereby causes damage to fishermen engaged in permitted fisheries by implementing a reclamation project of public waters which could inflict damage on fishermen engaged in permitted fisheries in the public waters, and thereby resulting in losses to fishermen who do no longer engage in permitted fisheries, Article 81(1) of the Fisheries Act which provides for the duty of compensation for losses when a fishery permit is revoked or suspended shall apply mutatis mutandis to compensation for losses. In this case, the amount of compensation shall be calculated by applying the implementation date of the reclamation project of public waters (see Supreme Court Decision 2003Da32162, May 14, 2004).

(2) According to the records, when calculating compensation for losses from the loss of fishery profits of this case, the above research institute investigated the catch as of 1991 when the reclamation work under the Saemangeum Project (hereinafter "the construction work of this case") commenced. However, the annual average unit price of catches or the unit price of fishing expenses was investigated and applied as of 1994, and the appraisal corporation which assessed the residual value of the fishing vessel and other facilities among the compensation for losses of this case also assessed the compensation for losses on the basis of 1994 as of 194. Thus, the above research institute or appraisal corporation violated the above legal principles as to the point of time of calculating the compensation for losses if delayed after the point of time of calculating the compensation for losses, and it is against the above legal principles as to the point of time of calculating the compensation for losses. However, it is difficult to compare the above research institute's or appraisal corporation's calculation of compensation for losses with the factors that will be lower than the calculation of compensation for losses due to the increase of fishing vessel's residual value due to the increase of sales unit price of fish, etc.

(3) According to the records, the court below's determination that the above research institute's price for losses for the year of 191 is no longer than the annual average rate of compensation for losses for the year of 191 and that the amount of compensation for losses for the year of 1991 is less than the annual average rate of compensation for losses for the year of 194, which is less than the annual average rate of compensation for losses for the year of 2000, which is less than the annual average rate of compensation for losses for the year of 90, which is less than the annual average rate of compensation for losses for the year of 90, which is less than the annual average rate of compensation for losses for the year of 90, which is less than the annual average rate of compensation for losses for the fishery activities conducted by the plaintiff 2. The court below's determination that the annual average rate of compensation for losses for losses for the year of 99, which is less than the annual average rate of compensation for losses for losses for the year of 991, which is less than the annual average rate of compensation for losses for 9991.

(4) The allegation in the grounds of appeal in this part is alleged to be erroneous in the calculation method of the first instance court, which is calculated that the compensation paid by the plaintiff et al. is more than the reasonable compensation, and the fact-finding of the court below has been erroneous. In light of the records, the calculation method of the first instance court's judgment cited by the court below is deemed to have some errors, such as omitting the depreciation costs of the hull and engine from the item of fishery expenses in 1994. However, even if it is calculated without complying with the calculation method of the first instance court's first instance court which has some errors, it is recognized that the plaintiff et al. received compensation more than the compensation for which the 191 was calculated on the price basis, as seen above, even if it is calculated without complying with the calculation method of the first instance court's first instance court'

(c) Items of fishery expenses;

The value of his wage or his main or subsidiary food expenses, and the depreciation costs of fishing vessels shall be all the expenses necessary for fishing operations under Article 62 (2) of the former Enforcement Decree of the Fisheries Act (amended by Presidential Decree No. 13910 of Jun. 19, 193). Meanwhile, even if fishermen do not sell all their catches, the sales expenses of the catch are essential for fishing operations and are included in the sales expenses of the catch at the time under the former Ordinance on the Protection of Fishery Resources (amended by Presidential Decree No. 15242 of Dec. 31, 1996). The above research institute's sales expenses are deemed to be included in the sales expenses of the consignment. The court below is justified in holding that the above research institute's calculation of compensation by evaluating its own wage, its main or subsidiary food expenses, depreciation costs, and consignment sales expenses as the sales expenses of the plaintiff et al., and it is not erroneous in the misapprehension of legal principles as to the above fishery expenses, as otherwise alleged in the ground of appeal.

2. On damages for delay

Even if a project operator obligated to compensate for losses performed a reclamation project of public waters which could cause damage to fishermen who are engaged in permitted fishery in the public waters without fulfilling the duty of compensation for losses, such tort shall not be established immediately from the commencement of the reclamation project, and it shall be established only when the project actually and practically infringed occurs. Specifically, the establishment date of the tort is not the time when the reclamation right holder commences the reclamation project of public waters but the fishermen are unable to engage in permitted fishery in the same way as the cancellation of the fishery permit occurs (see Supreme Court Decision 2003Da32162, May 14, 2004). The record reveals that the reclamation project of this case commenced on November 28, 1991 until the plaintiff et al. entered into the construction contract of this case with the defendant, and it can not be found that the plaintiff et al. paid damages to the plaintiff et al. until the completion date of the construction contract of this case until October 195 (see Supreme Court Decision 2003Da32162, May 14, 2004).

In addition, as long as the plaintiff et al. received more amount of compensation than compensation for losses computed in 1991 on the price basis, and the plaintiff et al. received actual damages such as revocation of fishery permission until the contract for compensation for losses of this case was concluded, even if the plaintiff et al. received the compensation for losses and agreed to do so without receiving the compensation for losses from the commencement of the work until the commencement of the work, it cannot be deemed as unfairly unfavorable to the plaintiff et al. as long as it can be denied the validity of the above agreement.

Therefore, this part of the Plaintiff’s assertion is difficult to accept.

3. As to the Additional Instituting Agreement

According to the reasoning of the judgment below, the court below determined that the research institute calculated the amount of compensation of the damaged fishermen, such as the plaintiff, etc. based on the aforementioned evidence, and the defendant announced that the compensation plan, such as the total amount of compensation for fishery due to the execution of reclamation work of this case, and individual fishery compensation amount, was finalized on August 23, 1995 before the above compensation was paid, the individual compensation amount can be perused at the place of business, and the person who has an objection can raise an objection within 14 days from the date of public announcement. On the other hand, the court below did not accept the plaintiff's request for consultation on compensation containing individual compensation amount and notified the plaintiff, etc. to conclude the compensation agreement at the Saemangeum Sea Reclamation Business Foundation (hereinafter referred to as the "Business Office"), which was entrusted by the defendant from September 15, 1995 to October 31 of the same year, and it did not appear that the plaintiff et al. did not receive the compensation amount of the contract of this case and did not present the plaintiff's allegation that it would receive the compensation amount of the above contract of this case.

In addition, the plaintiff filed the lawsuit in this case claiming the difference of compensation by asserting that the agreement on the lawsuit in this case was null and void because the plaintiff et al. received compensation for losses without any objection due to the determination that the compensation for losses was reasonable and no objection was made, and later made the agreement on the compensation for losses of this case and then the agreement on the lawsuit in this case was later unfavorable to the plaintiff et al., so the agreement on the lawsuit in this case claiming that the compensation for losses was null and void. Therefore, the plaintiff must prove that the above agreement on the lawsuit in this case was unfairly unfavorable to the plaintiff et al., and that the compensation for which was paid is less than the legitimate compensation for losses. Therefore, the court below rejected the plaintiff's assertion on the invalidity of the agreement in this case on the ground that there is no evidence to prove that the plaintiff et al. received the compensation for losses less than the legitimate compensation for losses which should have been paid

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

Justices Lee Hong-hoon (Presiding Justice)