[1] Whether the profit gained by engaging in the previous practice fishery after commencement of the reclamation project of public waters is deducted (negative)

[2] The effective scope of interruption of prescription where only a part of the claim is claimed

[1] The amount of damages caused by the tort on the ground that the public waters reclamation project was implemented without compensation in advance to lose the fishery rights, such as the fishery rights, is equivalent to compensation for losses. This is determined by the application or analogical application of the relevant Acts and subordinate statutes governing the method of calculating the amount of compensation for the extinction of the fishery rights, which provides for the method of calculating the amount of compensation for losses in proportion to the amount of the injured party’s ordinary profit. Therefore, it shall not be changed depending on whether the injured party is actually engaged in the previous fishery business after the commencement of reclamation of public waters, and the period or the degree of his/her profit and loss.

[2] In a case where it is interpreted that a judgment is sought on the whole claim even in a case where only a part of the claim is claimed, the interruption of prescription takes effect as to the whole claim within the extent of its identity, and such legal doctrine likewise applies to a claim for damages for damage arising from a specific tort.

[1] Articles 393 and 750 of the Civil Act, Article 40 (1) of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990) / [2] Article 168 of the Civil Act

[2] Supreme Court Decision 91Da43695 delivered on April 10, 1992 (Gong1992, 1541) Supreme Court Decision 92Da2924 delivered on December 8, 1992 (193Sang, 431)

Plaintiff 1 and 130 others (Attorneys Lee Hong-ro, Counsel for the plaintiff-appellant)

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

Seoul High Court Decision 98Na5809 delivered on November 25, 1999

Each appeal is dismissed. The costs of appeal are assessed against each appellant.

1. Part of the appeal by the Plaintiff (Appointed Party, hereinafter “Plaintiff”)

A. As to the assertion on the remaining designated parties except for the designated parties in the attached list No. 3 attached to the judgment below

Article 40(1) of the former Fisheries Act (amended by Act No. 4252, Aug. 1, 1990; hereinafter referred to as the “Act”) provides that the customary fishing right may be claimed and exercised against the joint fishing right holder; and even if the joint fishing right is not established, the method of compensation shall not be applied by analogy to the case where the right of fishing for the joint fishing under Articles 8 and 24 is cancelled. However, the provisions of Article 22 of the former Enforcement Decree of the Fisheries Act concerning compensation for reported fishing under Article 9 of the same Act which are similar to the customary fishing under Article 42 of the same Act should be applied by analogy to the amount of compensation for losses suffered by the joint fishing right holder by executing the public fishing under Article 40(1) of the same Act (see, e.g., Supreme Court Decision 9Da57942, Mar. 13, 201). 198.

In light of the above legal principles, in comparison with the evidence of the record, the court below is just in calculating the amount of damages for reported fishery operators with respect to the calculation of damages due to the loss of fishing right of this case. The court below did not err in the misapprehension of legal principles as to the determination of damages for reported fishery operators with respect to the calculation of damages due to the loss of fishing right of this case, and the amount of net income for 2 years as stipulated in Article 25-2 (1) of the former Enforcement Rule of the Special Act on the Law on the Law on the Law on the Law on the Law on the Law on the Law on the Law on the Law on the Law on the Law on the Law on the Law on the Law on the Law on the Law on the Law on the Law on the Law on the Law on

In addition, the judgment of the court below does not contain any misunderstanding of the judgment of the Supreme Court rendered in the grounds of appeal.

All of the arguments in the grounds of appeal are rejected.

B. As to the assertion on the designated parties of the attached list No. 3 attached to the judgment below

Article 40 of the Act recognizes a customary fishing right as a matter of principle by independent household, and recognizes a certain period of time for a person who has been transferred from a branch of not more than the second branch of the South or a person who has the ability and intention to continue such fishery, and in this case, it is the Supreme Court's decision that only a person who has the ability and intention to continue such fishery and reaches the age of 20 to 60 (see, e.g., Supreme Court Decisions 97Da22935, Jul. 24, 1998; 97Da41028, Jun. 11, 199).

The lower court, based on such criteria, determined that the designated parties listed in the annexed Table 3 attached to the lower judgment’s judgment cannot be deemed to have a customary fishing right for the fishing ground of this case as of October 12, 1987 at the time when the Defendant performed tide embankment construction work as indicated in the attached Table 3 of the lower judgment, rejected the Defendant’s claim for damages on the ground that the customary fishing right was lost due to the tide embankment construction work of this case

In light of the records, the fact-finding and judgment of the court below are just, and there is no error of law by misunderstanding facts due to failure to exhaust all necessary deliberations or violating the rules of evidence, or by misapprehending the legal principles as to the maximum working age of fishermen engaged in practice fishing.

All of the arguments in the grounds of appeal are rejected.

2. Defendant’s portion of appeal

A. As to Claims 1 and 2

Article 5 (1) of the former Enforcement Decree of the Public Waters Reclamation Act (amended by Presidential Decree No. 1257 of Oct. 13, 1987) provides that a reclamation license may be granted only when there is a person who has a right to the public waters in the "area intended to reclaim" under the amended Act (Act No. 3901 of Dec. 31, 1986) but also when there is a person who has a right to the public waters in the "area likely to be damaged due to such reclamation", such as the consent of the person who has the right. In addition, Article 5 (2) of the former Enforcement Decree of the Public Waters Reclamation Act (amended by Presidential Decree No. 1257 of Oct. 13, 1987) provides that the former Enforcement Decree of the Public Waters Reclamation Act (amended by Presidential Decree No. 12577 of Oct. 13, 1987) provides that a person who has a right to reclaim the public waters cannot use the adjacent public waters in accordance with Article 8-3 of the former Public Waters Reclamation Act.

The purport of Article 5 (1) of the former Public Waters Reclamation Act, which provides that a person holding a right in a neighboring zone where the reclamation is expected to be damaged by the reclamation, shall be granted a reclamation license for the public waters only under certain conditions, is that the damage caused by the reclamation of the public waters may be incurred not only to the public waters reclaimed due to the implementation of the project, but also to the adjacent zone, which still remains to the public waters after the implementation of the project. In light of the fact that the victim in the neighboring zone should not be protected as a special victim due to the implementation of the project, it is to clarify that Article 8-3 of the above Enforcement Decree of the Public Waters Reclamation Act applies the procedural and practical protection provisions to the public waters. In addition, considering Article 16 (1) of the above Enforcement Decree, Article 5 (1) of the same Act, which provides that "Where there is a person holding a right, the person who has obtained a reclamation license for the public waters shall compensate for the loss inflicted on the person holding the right or install facilities preventing such loss, it shall also be applied immediately to the neighboring right holder of the reclamation zone.

In addition, Article 2 of the Addenda of the Public Waters Reclamation Act, which stipulates that a reclamation licensee has already been granted prior to its enforcement, is effective only with respect to the application of the enforcement decree, and it can not be said that it has its effect with respect to the application of the above provisions of the Public Waters Reclamation Act.

In the same purport, the court below's finding the defendant's tort liability for the plaintiff and the designated parties (hereinafter referred to as "the plaintiff, etc.") in the judgment of the court below (hereinafter referred to as "the plaintiff, etc.") who suffered damage as a practice fishery right holder in the neighboring reclaimed area due to the reclamation project in this case which was implemented after the amendment of the Public Waters Reclamation Act was enforced is just in accordance with the above legal principles, and there is no error of law in the misapprehension

We cannot accept this part of the grounds of appeal.

B. As to the third ground for appeal

Article 40 of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990) refers to the right to capture or gather marine animals or plants for a long time from the public waters before the establishment of a joint fishing right to a certain public waters without a license, and thus, it reaches the level of general acceptance for the majority of the public. This is not only possible to assert and exercise the joint fishing right holder, but also to a third party disputing it, and it can be recognized as a right to claim the exclusion or a claim for damages therefrom. It can only be seen as a limited real right to the joint fishing right only after the joint fishing right is established (see, e.g., Supreme Court Decisions 88Meu14250, Jul. 11, 1989; 9Da57946, Mar. 13, 2001; 2009Da16497, Mar. 16, 200).

The court below is just in holding the defendant liable for damages arising from the defendant's tort against the practice fishing ground of this case where the joint fishing right is not established, and there is no error in the misapprehension of legal principles as alleged in the grounds of appeal.

We cannot accept this argument in the grounds of appeal.

C. As to Chapter 4, 5, and 6

The term "damage" under Article 766 (1) of the Civil Act refers to the case where the victim knew of the existence of an illegal harmful act and proximate causal relation between the occurrence of the harmful act and the occurrence of the harmful act as an awareness of the elements of the tort (see, e.g., Supreme Court Decisions 97Da28780, Dec. 26, 1997). Even if a project operator who is obligated to compensate for losses to compensate a person holding a right does not perform his/her duty to compensate for losses and implements the reclamation of public waters, the tort is not immediately established only by the commencement of the project, and it is established only when the actual and real infringement occurred (see, e.g., Supreme Court Decisions 98Da52858, Sept. 17, 1999; 98Da11529, Nov. 23, 199; 200Da36786, Nov. 26, 200).

The court below rejected the defendant's claim for damages of this case, such as the plaintiff, etc. who lost the fishery right of this case, lost the function and economic value as a fishing ground because of the low quantity of naturally occurring fish and shellfish remaining in January 194, when the fish and shellfish became lost because the ecosystem was changed due to the changes in topography due to the proliferation of earth and sand, the change in sea water flow, the sediment of sediment, etc. in the area of fishing ground, and the sediment of the niveiment of the niveiment of the nivei of the nivei of the nivei of the nivei of the nivei of the 1987.

In light of the above legal principles, the court below's fact-finding and decision are just, and there is no error in the misapprehension of legal principles as to the time of loss of functions of the practice fishing ground of this case or the type of damages of this case and the day of knowing the same, and it cannot be deemed that there is a conflict of the Supreme Court's decision as stated in the ground of appeal.

This part of the grounds of appeal cannot be accepted.

D. As to Chapter 7

Article 40 of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990; hereinafter the same) provides that "right according to a customary practice" is established when a person captures or gathers marine animals or plants on a certain public water surface for a long time prior to the establishment of a joint fishery right for a certain public water surface without a fishery license, and an ombudsman continues to capture or gather such marine animals or plants for a long time on the public water surface to the extent that it would be generally accepted for the majority of the people (see, e.g., Supreme Court Decisions 88Meu14250, Jul. 11, 1989; 9Da57942, Mar. 13, 2001). For this purpose, the custom of the fishery activity does not necessarily have to have started before December 9, 1953 in which the Fisheries Act came into effect for the first time.

The court below's finding the defendant's liability to compensate for damages against the plaintiffs who either were the heads of households within the scope of the maximum working age at the time of the implementation of the reclamation project of this case or who were the members of the household within such households as the customary fishing right holder for the fishing ground of this case is justifiable in accordance with the above legal principles. In addition, the court below's rejection of the defendant's assertion that the customary fishing right can be acknowledged only to those who had already been engaged in fishing activities under the practice of 20 years or more at the time of December 9, 1953 when the Fisheries Act was enforced for the first time. Thus, the court below did not err in the misapprehension of legal principles as to the defendant's assertion about the customary fishing of the Fisheries Act or the

We cannot accept this part of the grounds of appeal.

E. As to Chapter 8

The amount of damages caused by the tort on the ground that the public waters reclamation project was implemented without compensation in advance to lose the fishery rights, such as the fishery rights, is equivalent to the compensation for losses as seen earlier. This is calculated according to a certain formula in accordance with the application or analogical application of the relevant Acts and subordinate statutes prescribing the method of calculating the amount of compensation for the extinction of the fishery rights, which provides for the method of calculating the amount of compensation for losses to a certain extent. Therefore, the determination of whether the victim is actually engaged in the previous fishery business after the commencement of the reclamation project of public waters and the existence and degree of its period or profit shall not vary depending on the amount of the victim's ordinary profit.

In calculating the amount of damages in this case, the court below was just in finding that the plaintiff et al. did not deduct profits from previous practice fishing from the practice fishing ground after the commencement of the reclamation business in this case, and did not err by misapprehending the legal principles on the deduction of profits and losses, calculation of damages, and lack of reasoning.

The grounds of appeal cannot be accepted.

F. As to Chapter 9

According to the appraiser's appraisal results of the non-party and the fact-finding results of the court of first instance, the appraiser's opinion that considers the fishermen's annual working days as 240 days a monthly average of 20 days based on his multi-year appraisal experience, and considering the specific circumstances, such as the survey data about the annual average working days of the fishery workers in the business district of this case, the survey data about the annual working days of the fishery workers in the business district of this case, the period of engaging in other fisheries such as licensed fishing, the number of working days in other occupations, the number of members of the households engaged in each business, and their age, the appraiser's appraisal results of 80 days, 60 days, and 40 days in each business fishing ground of this case including the plaintiff et al.

Therefore, the judgment of the court below is just in finding the amount of damages of the plaintiff et al. according to the result of the appraisal, and it did not err by excessively recognizing the number of annual working days of those engaged in the practice fishing of this case

The grounds of appeal cannot be accepted.

G. As to Chapter 10

In a case where it is interpreted that a judgment is sought with respect to the whole claim even in a case where only a part of the claims claimed as the object of the claim is claimed, the interruption of prescription with respect to the whole claim takes effect within the scope of its identity (see Supreme Court Decisions 91Da43695, Apr. 10, 1992; 92Da29924, Dec. 8, 1992). Such a legal principle likewise applies to a claim for damages for damages arising from a specific tort.

The plaintiff filed the lawsuit in this case before the expiration of the extinctive prescription period for the damage claim in this case, and claimed only the amount of KRW 100 million and damages for delay from June 10, 1987 for himself and the designated parties, but filed an application for modification of the purport and cause of expanding the claim amount only on May 8, 1997. However, it is evident in itself that the facts clearly indicate the extension of the claim amount according to the result of the court's appraisal of damages that will be enforced in the future upon the submission of the complaint are clearly stated in the complaint. In this situation, the plaintiff can be deemed to have filed a judgment on the whole damage claim in this case from the time of the submission of the complaint to June 10, 1987 as well as the whole damages for delay against the whole damages claim in this case. Therefore, the validity of the interruption of prescription by the submission of the complaint in this case shall be deemed to have occurred not only in the claim for damages for damages for 100 million

Therefore, the court below's decision that the defendant is liable to compensate for damages for the period from May 8, 1997 to three years before the submission of the above claim and the application for modification of the ground for the cited amount among the damages claim amount exceeding KRW 100 million stated in the complaint is just in accordance with the above legal principles, and there is no error in the misapprehension of legal principles as to the period of extinctive prescription and the scope of the interruption of prescription.

We cannot accept this part of the grounds of appeal.

4. Therefore, each appeal by the plaintiff and the defendant is dismissed, and all costs of appeal are assessed against each appellant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Shin Shin-chul (Presiding Justice)