[1] The meaning of "right according to the practice of "the right of fishery" under Article 40 of the former Fisheries Act

[2] Whether the practice fishery right under Article 40 of the former Fisheries Act belongs to the collective ownership of the fishing village fraternity (negative)

[3] Qualification requirements and maximum working age of fishermen who have a customary fishing right under Article 40 of the former Fisheries Act

[4] In a case where a person who obtained a license for reclamation of public waters causes damage to a reclamation project without compensation to a person who has a right to the public waters, whether such tort is established (affirmative) and the scope of compensation for damage (=amount equivalent to compensation

[5] The method of assessing the amount of damages due to the extinction of the customary fishing right under Article 40 of the former Fisheries Act

[1] Article 40 of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990) refers to the right in accordance with the practice of entry into a fish farm under Article 40 of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990), which is the right that continues to capture or gather marine animals and plants for a long time from the fishery place before the establishment of a joint fishery right for any fishing ground, and it reaches the extent that it would be generally accepted for the majority of the people. Thus, the public waters in question can be recognized regardless of whether a joint fishery right has been established, and only if a joint fishery right has been established,

[2] The customary fishing right under Article 40 of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990) does not necessarily belong to the collective ownership of fishing village fraternities, considering its nature.

[3] The customary fishing right under Article 40 of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990) is acknowledged as a matter of principle by an independent household, and a certain period of time shall be recognized as to a person who moves from a branch of a decentralization or a person who moves from a foreign branch. Even in this case, it is recognized as only for a person who has labor ability and intention to continue such fishery and who is able to reach 20 to 60 years of age.

[4] If a person who obtained a license for reclaiming public waters without compensation under Article 16(1) of the Public Waters Reclamation Act causes damage to a person who has the right to receive compensation by implementing the reclamation project of public waters without compensation under Article 16(1), this constitutes a tort, and the damage suffered by the right holder is the amount equivalent to compensation

[5] The customary fishing right that he/she has engaged in catching or gathering marine animals and plants by simply catching marine animals and plants within a fishing ground (amended by Act No. 4252 of Aug. 1, 1990) is not a right to exclusively use a certain public waters, such as fishing rights recognized by a license for joint fishing business under Articles 8 and 24 of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990), but rather than a right to exclusively catch or gather marine animals and plants on a certain public waters without interference. Thus, in assessing losses arising from the extinguishment of such right, it may not be applied by applying the method of compensation for cases where the fishing right recognized by a license for joint fishing business under Articles 8 and 24 of the former Fisheries Act is revoked by applying it to the method of compensation for losses of the reported fishery business under Article 22 of the former Act (amended by Ordinance of the Ministry of Construction and Transportation of the Ministry of Construction and Transportation as an exclusive right to exclusively use marine animals and plants within a certain public waters.

[1] Article 40 of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990) / [2] Article 40 of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990) / [3] Article 40 of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990) / [4] Article 16 (1) of the Public Waters Reclamation Act, Articles 393, 750, and 763 of the Civil Act / [5] Articles 8, 22, 24, and 40 of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 190), Article 6, Article 16 (1) of the Public Waters Reclamation Act, Article 16 (1) of the former Enforcement Rule of the Public Waters Reclamation Act (amended by Ordinance of the Ministry of Construction and Transportation No. 5132 of Apr. 1, 1992)

[1] [2] Supreme Court Decision 88Meu14250 Decided July 11, 1989 (Gong1989, 1215) / [1] Supreme Court Decision 97Da2935 Decided July 24, 1998 / [1] Supreme Court Decision 69Da173 Decided March 31, 1969 (No. 17-1, 408), Supreme Court Decision 93Da45701 Decided March 25, 1994 (Gong1994, 1332) / [2] Supreme Court en banc Decision 96Da15176 Decided December 11, 198 (No. 495, April 14, 1998; Supreme Court Decision 97Da93979 decided March 29, 195; Supreme Court Decision 97Da94979 decided April 19, 195)

Plaintiff 1 and one other [Plaintiff (Appointed Party, Attorneys Lee Hong-ro et al., Counsel for the plaintiff-Appointed Party-appointed Party-appellant-appellant-appellee)

Korea Water Resources Corporation (Law Firm Squa, Attorneys Park Dong-dong et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 97Na1978 delivered on August 1, 1997

The part of the judgment of the court below, excluding the part concerning the claim of the Appointors listed in the annexed Table 2 attached hereto, is reversed and remanded to the Seoul High Court. The appeal by the plaintiff (Appointeds) as to the part excluded from the reversal is dismissed.

The grounds of appeal by the plaintiff (appointed party, and the following are only the plaintiff) and the defendant's grounds of appeal are examined together.

1. As to the Defendant’s first ground of appeal

Article 40 of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990, and under the following, the former Fisheries Act) refers to the right under Article 40 of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990, and only the same shall apply to the following Fisheries Act) which continues to collect or gather marine animals and plants from a fishing place for a long time before the establishment of a joint fishing right for any fishing place without a license to the fishing place, and thus it reaches the extent that it would be generally accepted to the majority (see, e.g., Supreme Court Decisions 93Da45701, Mar. 25, 1994; 93Da45701, Jul. 24, 1998).

The judgment of the court below to the same purport is just, and there is no violation of the legal principles as to practice fishing under the former Fisheries Act.

2. As to the defendant's second ground for appeal

The customary fishing right under the former Fisheries Act does not necessarily belong to the collective ownership of fishing village fraternities (see, e.g., Supreme Court Decisions 88Meu14250, Jul. 11, 1989; 96Da15176, Dec. 11, 1998).

In the same purport, the court below rejected the defendant's assertion that the claim of this case was unfair on the premise that each member of the fishing village fraternity is the joint ownership of the fishing village fraternity because the fishing village fraternity is the joint ownership of the fishing village fraternity. In light of the records, the court below's findings of fact and decision are just, and there are no errors in the misapprehension of legal principles as to the misconception of facts against the rules of evidence or the quasi-general ownership of rights.

3. As to ground of appeal No. 2 by the plaintiff

Article 40 of the former Fisheries Act recognizes the customary fishing right as a matter of principle for independent households and recognizes it as a period of time for a person who is transferred from a branch of a son or a person who is not more than the next South or a person who is transferred from a foreign branch, and even in this case, it is the Supreme Court's decision that the person who has labor ability and intention to continue such fishery and who is from the age of 20 to 60 (see Supreme Court Decision 97Da22935 delivered on July 24, 1998).

The court below rejected the above designated parties' claim for damages on the ground that the designated parties listed in the attached list No. 3 of the judgment of the court below pursuant to the above criteria cannot be deemed to have a customary fishing right for the fishing ground of this case as of April 5, 198, which was at the time when the defendant performed a tide embankment construction work in the attached list of the judgment of the court below.

In light of the records, the fact-finding and decision of the court below is just, and there is no error in the misapprehension of facts against the rules of evidence or in the misapprehension of the legal principles as to the maximum working age of fishermen engaged in practice fishing, as alleged in the grounds of

4. The plaintiff's ground of appeal No. 1 and the defendant's ground of appeal No. 3

The court below acknowledged that the remaining designated parties except those listed in the attached list 2 of the judgment below obtained the customary fishing right for the fishing ground of this case by collecting the spawn, spawn of naturally occurring fish and shellfish in the fishing ground of this case without any specific facilities in accordance with the past practices from the past. The court below recognized that the Defendant performed the tide embankment construction of this case without any compensation for the remaining designated parties, thereby completely losing the function as a fishing ground of this case. In calculating damages suffered by the remaining designated parties due to the above tort, the court below applied the provisions of Article 72 of the former Enforcement Decree of the Fisheries Act (wholly amended by Presidential Decree No. 1308, Feb. 18, 191) which set the compensation method for the cases where the fishery right recognized by the joint fishing license under Articles 8 and 24 of the former Fisheries Act is revoked.

In general, if a person who obtained a license for reclaiming public waters without compensation under Article 16(1) of the Public Waters Reclamation Act causes damage to a person who has the right to receive compensation by implementing the reclamation project of public waters without compensation under Article 16(1), this constitutes tort (see Supreme Court en banc Decision 96Da3258, Mar. 28, 1997). The damage suffered by the person who has the right to receive compensation is equivalent to compensation (see Supreme Court en banc Decision 89Da9552, Jun. 12, 199).

However, if the above designated parties simply catch or gather marine animals and plants in the fishing ground of this case, such as the above designated parties, they have the practice fishing right is not merely the right to catch or gather marine animals and plants by entering a certain public waters without being disturbed by others, rather than the exclusive right to catch or gather marine animals and plants exclusively on the water, such as the fishing right recognized by the license for joint fishing, etc. under Articles 8 and 24 of the former Fisheries Act.

Therefore, in assessing losses caused by the extinguishment of such rights, the method of compensation cannot be analogically applied to cases where a fishery right recognized by a license for joint fishing, etc. is revoked under Articles 8 and 24 of the former Fisheries Act, which is an exclusive right to gather or gather marine animals and plants exclusively on the surface of a certain public waters and is an exclusive right to gather or gather marine animals and plants.

Rather, as seen earlier, the designated parties engaged in the fishery of collecting fish and shellfish, spawn, spawn, spawn, spawn, etc. in the fishing ground of this case without any specific facilities. As such, it can be deemed as similar to the type of reported fishery under Article 22 of the former Fisheries Act in substance, and it is reasonable to apply mutatis mutandis to the provisions on the compensation of reported fishery business in assessing losses incurred by the extinguishment of such rights of the designated parties.

Article 25-2 (1) of the former Enforcement Rule of the Special Act on the Compensation for Public Loss (amended by Ordinance of the Ministry of Construction and Transportation No. 435 of Apr. 25, 198) of the Special Act on the Compensation for Public Loss (amended by Ordinance of the Ministry of Construction and Transportation No. 493 of Oct. 28, 1991) provides that "where a fishery business is closed or closed due to the execution of public projects, such as the bank construction and bank construction work, and bank construction work, etc., it is impossible to continue the fishery business, the amount of loss shall be appraised on the basis of the net income (the net income amount in the case of a corporation) calculated by calculating the arithmetic mean of the income for the last three years in the case of the closure of the business, and the net income (the net income amount in the case of a corporation) corresponding to the actual suspension period in the case of the closure of business." Therefore, it is reasonable to assess the amount of loss in this case by analogy it by applying it to this.

Nevertheless, the court below's adoption of the method of calculating the amount of damages for the cancellation, etc. of licensing fishery in calculating the amount of damages by the aforementioned designated parties is erroneous in the misapprehension of the legal principles of calculating the amount of damages and the remaining decision that affected the conclusion of the judgment. Therefore, the defendant's

On the other hand, the plaintiff's ground of appeal concerning this part disputes the amount of damages calculated by the court below on the premise that the method of calculating the amount of damages where the fishery right by joint fishing license is revoked shall apply mutatis mutandis to this case. As seen in the part of the judgment on the defendant's ground of appeal concerning the above ground of appeal, as long as the judgment of the court below which calculated the amount of damages by adopting the above method is erroneous and it has no choice but to review and determine again the amount of damages, this part of the plaintiff

4. Therefore, without further proceeding to decide on the remaining grounds of appeal by the plaintiff and the defendant, the part of the judgment below, excluding the part concerning the claims by the designated parties listed in the annexed Table 2 attached to the judgment below, is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. The plaintiffs' appeal as to the claims by the designated parties listed in the above list excluded from the reversal is dismissed. It is so decided as per Disposition by the assent of all participating Justices

Justices Kim Jong-sik (Presiding Justice)