[1] Where a customary fishery right is lost due to a reclamation project implemented without a compensation procedure, the scope of damages suffered by the customary fishery right holder and the calculation basis thereof

[2] The time when a tort is established in a case where a customary fishery right is infringed on a reclamation project implemented without compensation procedure

[3] The case affirming the court below's order to pay damages for delay as to the amount of damages on the ground that a tort was established due to the implementation of a district development project at the time of the completion of the construction work of the water embankment No. 2

[4] Qualification requirements and maximum working age of fishermen who are recognized as having customary fishing rights under Article 40 of the former Fisheries Act

[1] Where a project operator loses a customary fishing right by implementing a construction project for reclaiming public waters without fulfilling his/her duty to compensate for losses, the damages suffered by a person holding a customary fishing right is equivalent to the compensation for losses, and the amount of such damages shall be calculated based on the enforcement date of the reclamation project for public waters, which is the time when

[2] Even if a project operator who is obligated to compensate for losses to a person who has the right does not perform the duty of compensation for losses and performed the reclamation of public waters without performing the duty of compensation, such tort is not immediately established only by the commencement of the public waters project, and it is established only when the project actually and practically infringes upon the project. Specifically, the establishment date of the tort is not the commencement date of the reclamation of public waters but when the fishery right holder causes losses to the fishing ground according to the progress of the construction.

[3] The case affirming the court below's order to pay damages for delay as to the amount of damages on the ground that a tort was established due to the implementation of a district development project at the time the construction work was completed at the time of the physical embankment No. 2 of the Silland Development Project

[4] The customary fishing right under Article 40 of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990) is recognized as a matter of principle by independent household, and as to a person who moves from a decentralization or a person who moves from a place of outside Korea, a certain period of time shall have elapsed. In addition, in principle, it is recognized as limited to a person who has labor ability and intention to continue such fishery and reaches the age of 20 to 60, and in the case of the aged who exceeds the maximum working age, it is recognized only when there is a member of the household, etc. who will be engaged in such fishery and

[1] Article 40 (1) of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990), Articles 6 and 16 of the former Public Waters Reclamation Act (amended by Act No. 4252 of Aug. 1, 1990) / [2] Article 750 of the Civil Act, Articles 40 (1) of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990), Articles 6 and 16 of the former Public Waters Reclamation Act (amended by Act No. 4252 of Aug. 1, 1990) / [3] Article 750 of the Civil Act / [4] Article 40 of the former Public Waters Reclamation Act (amended by Act No. 4252 of Aug. 1, 190)

[1] Supreme Court Decision 97Da41028 delivered on June 11, 1999 (Gong199Ha, 1342), Supreme Court Decision 98Da11529 delivered on November 23, 199 (Gong2000Sang, 1) Supreme Court Decision 99Da38705 delivered on April 10, 2001 (Gong2001Sang, 1081), Supreme Court Decision 200Da16893 Delivered on September 25, 200 (Gong201Ha, 2320) / [2] Supreme Court Decision 98Da5288 delivered on September 17, 199, 200Da168939 delivered on September 25, 2009 (Gong2009Da1638949 delivered on September 29, 209)

Plaintiff (Appointed Party) (Attorney Lee Hong-ro, Counsel for defendant-appellant)

Korea Water Resources Corporation (Attorney Go Young-chul, Counsel for the defendant-appellant)

Seoul High Court Decision 97Na43217 delivered on June 4, 2003

The part of the lower judgment against the Plaintiff (Appointeds) is reversed with respect to 35, 109, and 112, and that part of the case is remanded to the Seoul High Court. The remaining appeals by the Plaintiff (Appointeds) are dismissed.

1. The judgment of the court below

According to the reasoning of the judgment below, the designated parties 2 were engaged in customs duties in the instant fishing ground as stated in the judgment of the court below 100 Do governor 100 Do governor 200 Do governor 140 Do governor 220 Do governor 144 Do governor 20 Do governor 20 Do governor 14 5 Do governor 12222, 198 Do governor 197 Do governor 97 - 1 5 Do governor 2, 198 - 9 Do governor 2, 194 - 9 Do governor 2, 197 - 1, 194 - 1, 197 - 1, 197 - - 1, 4, 5, 197 - - - - 1, 197 - - -

2. Judgment of the Supreme Court

A. As to the first ground for appeal

Where a project operator loses a customary fishing right by executing a reclamation project of public waters without fulfilling his/her duty to compensate for losses, the damages suffered by a customary fishing right holder are equivalent to compensation for such losses, and the amount of compensation should be calculated based on the date of implementation of the reclamation project of public waters, which is the time when the compensation for losses should have been paid, is the opinion that the Supreme Court has held several times (see Supreme Court Decision 2000Da16893, Sept. 25, 2001, etc.). Therefore, the court below is just in calculating damages suffered by the designated parties as shown in the attached Form 2 of the court below as of October 12, 1987, which was implemented by the Hudobbdog Construction among the reclamation works of public waters of this case, and there is no error

B. Regarding ground of appeal No. 2

The initial date in which damages for delay are paid due to tort is the date of establishment of tort (see Supreme Court Decision 74Da1393 delivered on May 27, 1975, Supreme Court Decision 92Da48413 delivered on March 9, 1993). Meanwhile, even if a project operator who is obligated to compensate for losses on the holder of the right does not perform the duty of compensation for losses and performed the reclamation of public waters without performing the duty of compensation for losses, the tort is not established only by the commencement of the project, and it is established only when the project actually and practically infringed upon (see Supreme Court Decision 200Da16893 delivered on September 25, 200). Specifically, the date in which the tort is established is not when the reclamation right holder commenced the reclamation of public waters but when the fishery right holder loses the fishing ground according to the construction progress (see Supreme Court Decision 98Da5858 delivered on September 17, 199).

According to the facts established by the court below, since the designated parties listed in the annexed Form 2 of the court below lost fishing ground due to the execution of the development project of this case, the physical form of the embankment No. 2 was completed on January 24, 1994 after the construction work was completed, the starting date of the compensation liability for delay against the above designated parties shall be deemed January 24, 1994, which is the date of establishment of tort due to the execution of the development project of this case. Thus, the court below's order the payment of damages for delay as to the amount of damages calculated as above from January 24, 1994 shall be justified, and there is no error in the misapprehension of legal principles as to the starting date of compensation for delay as otherwise alleged in the ground of appeal.

C. Regarding ground of appeal No. 3

Article 40 of the former Fisheries Act recognizes a customary fishing right as a matter of principle by independent household and recognizes a certain period of time as to a person who has a labor ability and intent to continue such fishery, and, in principle, recognizes only those who have reached the age from 20 to 60, and in the case of the aged who has exceeded the maximum working age, only if there is a member of the household, etc., who will be engaged in Do and practice fishery (see Supreme Court Decisions 97Da41028, Jun. 11, 1999; 9Da38705, Apr. 10, 2001; 200Da17988, Oct. 26, 2001, etc.).

In light of the above legal principles and records, the court below is just in rejecting the claim of the above designated parties who seek compensation for damages on the ground that the designated parties 107, 140, and 148 among the designated parties pursuant to such standards cannot be deemed to have a customary fishing right as of October 12, 1987, when the defendant performed a tide embankment construction work in the judgment of the court below, and there is no error in the misapprehension of the legal principles as to the requirements for recognition of a customary fishing right due to violation of the rules of evidence or in the misapprehension of the legal principles as to the requirements for recognition of a customary fishing right, as alleged in the grounds of appeal.

However, according to the records, the non-party 1 (the non-party 2) who was his father on June 12, 1993, transferred the non-party 1 (the non-party 1 omitted) to the Gyeonggi Gun (the address 1 omitted), but was transferred to the non-party 1 (the non-party 2 omitted) (the non-party 1) within the jurisdiction of the 15th day of the 196th day of the 2nd day of the 197th day of the 196th day of the 2nd day of the 197th day of the 196th day of the 196th day of the 196th day of the 2nd day of the 196th day of the 196th day of the 196th day of the 2nd day of the 196th day of the 196th day of the 19th day of the 2nd day of the 196th day of the 19th day of the 2nd day of the 197th day of the 2nd day of the 3rd day of the 197th day. day.

3. Conclusion

Therefore, the part of the judgment of the court below against the plaintiff (appointed party) is reversed, and this part of the case is remanded to the court below for a new trial and determination. The remaining appeal by the plaintiff (Appointed party) is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)