In cases where a fishing village fraternity, which is a juristic person, is a holder of a fishery right, whether the holder of the right to compensate for losses or the right to claim compensation for damages arising from the extinguishment of the fishery right (=whether the fishing village fraternity) and the members of the fishing village fraternity can exercise ex officio or in subrogation

In cases where a corporate fishing village fraternity under the provisions of Article 16-2 of the Fisheries Cooperatives Act is a person entitled to register a fishery right, its members can exercise the fishery right by concluding an exercise contract in accordance with the fishing ground management covenant of the fishing village fraternity approved by the supervisory authority. As such, compensation for losses or damages due to the extinguishment of fishery right belongs to the fishing village fraternity, and the members of the fishing village fraternity are not the person entitled to claim the damages due to the extinguishment of fishery right, and the members of the fishing village fraternity cannot exercise the right to claim the damages against the third party directly

Article 15 of the Fisheries Act, Article 16-2 of the Fisheries Cooperatives Act, Article 404 of the Civil Act

Hyundai Construction Co., Ltd. (Law Firm Pacific, Attorneys Kim Sung-jin et al., Counsel for the defendant-appellant)

Defendant Counterclaim Plaintiff and 10 others (Attorney Long-term et al., Counsel for the plaintiff-appellant)

A fishing village fraternity (Attorney Long-term et al., Counsel for defendant-appellee)

Seoul High Court Decision 97Na14554, 14561, 49604 delivered on March 26, 199

All appeals by the Defendant-Counterclaim Plaintiff and the Plaintiff-Counterclaim Defendant’s supplementary appeal are dismissed. The costs of appeal are assessed against the Defendant-Counterclaim Plaintiff and the Plaintiff-Counterclaim Defendant’s supplementary appeal. The costs of appeal are assessed against each of the Plaintiff-Counterclaim Defendant (Counterclaim Defendant).

The grounds of appeal by the Defendant (Counterclaim Plaintiff; hereinafter referred to as “Defendant”) and the grounds of incidental appeal by the Plaintiff (Counterclaim Defendant; hereinafter referred to as “Plaintiff”) are also examined.

1. The lower court acknowledged the following facts based on the evidence produced therefrom.

A. The Defendants, who were fishermen residing in the Republic of Korea ( Address 1 omitted), was organized in around 1977, and had a fishing village fraternity (hereinafter referred to as the “fishing village fraternity”) in the form of neglect in accordance with the number of obligations in the separate sheet 2 of the judgment below, as shown in the separate sheet 1 of the judgment below, on the fishing ground in the name of fishing village fraternity as shown in the separate sheet 11 of the judgment below, with respect to the fishing ground in the name of fishing village fraternity as shown in the separate sheet 11 of the judgment below, and were living in the fish farm as a main business.

B. On October 31, 1978, the Plaintiff applied for a reclamation license for public waters for the purpose of creating livestock complexes and farmland with respect to the instant zone A and B, which are public waters, on August 24, 1979, and obtained a reclamation license on the condition that the right holder under Article 6 of the Public Waters Reclamation Act within the reclamation zone should obtain consent from the Minister of Agriculture and Forestry within one month from the date of the license, and completed the reclamation license on November 23, 1980, the Plaintiff started construction on May 26, 1982 with the authorization of the implementation plan of the zone B on March 13, 1980, and completed the construction on October 26, 1982.

C. However, since around 1983 when the Plaintiff was performing the reclamation of public waters, there was a dispute between fishermen on the grounds that fishery damage was inflicted on the surrounding areas due to the said construction work, and on October 20, 1984, the first agreement was concluded between the Plaintiff and the fishing village fraternity (the head of the fishing village fraternity at that time was Nonparty 1) that “the Plaintiff would pay KRW 115,000,000 to the fishing village fraternity as compensation for the biological damage caused by the neglect of farming, and thereafter the fishing village fraternity would not raise any objection to the said construction.”

D. After that, fishermen's appeal to the fishery damage occurred in areas other than the whole world, and there was an objection to the cause of fishery damage, the amount of compensation therefor, etc., even among fishermen who are members of fishing village fraternity, Chungcheongnam-do at the expense of the plaintiff. On March 27, 1985, Chungcheongnam-do requested an investigation to the Busan Fisheries University Coast Research Center on the issue of whether there was a change in the ecosystem of nearby fishing grounds due to the embankment at reclaimed facilities and whether there was a damage to fishery rights. The above research conducted an investigation on July 1984 from October 1984 to April 1985 on the ground that the decline in the fish farming in Seosan-do caused a decrease in the dust farming in the average temperature, customs reduction, lack of rainfall, the increase in water temperature, the decrease in water temperature, the decrease in water temperature, the decrease in water pollution response in the environment of Cambodia, such as the decrease in water spreading and the decrease in water spreading caused by the decrease in the water pollution.

E. Despite the research results of the above laboratories, when disputes have not been reached between the plaintiff and the damaged fishermen on a long-term and collective basis, the State and Chungcheongnam-do reached an agreement on compensation for damage smooth to the plaintiff. On the other hand, as a result of direct contact with the plaintiff and the affected fishermen's representatives, the agreement was reached on the total compensation amount of KRW 7,314,700,000. Accordingly, on May 20, 1986, the Chungcheongnam-do governor delegated the authority to reach agreement on compensation for fishing ground damages owned by the fishing village fraternity to the Do governor, and no objection has been raised in the future. The agreement was reached between the plaintiff and the 21st of the same month on behalf of the plaintiff and the 21st of the fishing village fraternity, on the premise that the agreement was reached between the plaintiff and the damaged fishermen and the 30th of the above 7th of the same month on the distribution of the damages directly or indirectly by the 30th of the above 7th of the fishing village fraternity, and the plaintiff paid the above agreement on the remaining 2170th of the same year.

F. However, in the course of the process of the above reclamation project, the inflow of fresh water continued to decrease so that it is no longer possible to continue the form of neglect due to the reduction of nutritional salt and the rise in water temperature. A fishing village fraternity became extinct by reporting the renunciation of its fishery rights (No. 962, 1204, 1281, 1355, 1431) among the fishery rights of this case from 1989 to 190.

2. The judgment of the court below

A. First, the lower court determined that the Plaintiff’s representative of the fishing village fraternity and the Plaintiff’s respective fishing village fraternity were liable to compensate the Plaintiff for damages arising from the Plaintiff’s failure to exercise its right of compensation, on the grounds that, even if fishing ground damages occurred due to the construction of a tide embankment, the Plaintiff’s assertion that the Plaintiff could not exercise its right of compensation, the Plaintiff’s right of compensation, the Defendant’s defense of safety and authority, and the Plaintiff’s assertion of unfair legal acts, etc. were all followed, based on the following facts: (a) the Plaintiff’s reclamation work caused a decrease in water inflows in water in the Seosan Man Man Man Man Man, Seosan, which led to a decrease in water production from each fishing ground of this case; and (b) the decline in water production from each fishing ground of this case; and (c) the Plaintiff’s failure to take appropriate measures to compensate the Plaintiff for damages to the fishery right of this case; and (d) the Plaintiff’s representative of the fishing village fraternity and the Plaintiff’s respective representative of the fishing village fraternity were liable to compensate the Plaintiff’s for damages arising from the agreement.

B. Furthermore, the court below rejected the above assertion on the ground that the above second agreement is calculated on the premise that the plaintiff can continue to engage in a farming business due to neglect in the relevant fishing ground under the condition that each of the fishery rights of this case is not extinguished and somewhat damaged, since the situation becomes worse, which makes it impossible for the plaintiff to engage in a farming business due to neglect in the fishing ground of each of the fishery rights of this case, this is all new losses that could not have been predicted at the time of the above agreement, and therefore, regardless of the validity of the agreement, the plaintiff is liable to compensate for damages suffered by the plaintiff due to the extinguishment of each of the fishery rights of this case, and the defendants are entitled to such damages by subrogation of fishing village fraternity. Since each of the fishery rights of this case belongs to the fishing village fraternity because each of the fishery rights of this case belongs to the plaintiff due to the extinguishment of the fishery right of this case, even if the defendants suffered any new damages which cannot be predicted at the time of the second agreement, it is also deemed that the plaintiff has a specific claim against the fishing village fraternity.

C. However, the lower court determined that the Defendants were liable for damages to the Plaintiff on the 10th anniversary of the completion of their reclamation works, and that the Defendants were liable for damages to the Plaintiff on the 10th anniversary of their initial construction works, the introduction of equipment overseas, opposition to the construction works, etc., and that the Defendants were not liable for damages to the said 10th anniversary of their initial construction works. The lower court determined that the Defendants were not liable for damages to the said 10th subsequent construction works, and that the Defendants were not liable for damages to the said 10th subsequent construction works, and that the Defendants were not liable for damages to the said 10th subsequent construction works, and that the Defendants were not liable for damages to the said 10th subsequent construction works by the 10th subsequent construction works, and that the Defendants were not so liable for damages to the said 10th new construction works, and that the Defendants were not so liable for damages to the said 10th subsequent construction works to the 19th subsequent construction works.

3. Judgment of the Supreme Court

A. First, the supplementary intervenor's fishing village fraternity is a juristic person fishing village fraternity under Article 16-2 of the Fisheries Cooperatives Act, which is a registered holder of each fishery right of this case, and therefore, the Defendants, which are the grounds for the fraternity, can exercise the fishery right by entering into an exercise contract in accordance with the fishing ground management covenant approved by the supervisory authority. Thus, compensation for damages or damages arising from the extinguishment of fishery right belongs to fishing village fraternity, and the Defendants, which are the grounds for the fraternity, are not the parties for the right to claim damages due to the extinguishment of fishery right. Further, the Defendants, which are the grounds for the fraternity of fishing village fraternity, cannot be viewed as the direct or vicarious exercise of the right to claim damages of this case which the fishing village fraternity has against the third party. Accordingly, the judgment of the court below which rejected the Defendants' assertion is just and there

B. In addition, in light of the above facts in comparison with the records, the Minister of Agriculture and Forestry newly imposed the compensation for new damage which was impossible to form a neglect in each fishing ground of this case due to the extension of the completion period on the plaintiff, and the plaintiff accepted this and submitted a letter to the effect that most damaged fishermen would agree on the additional compensation and the remaining fishermen would compensate for additional damages. The plaintiff's declaration of intent of the above additional compensation agreement is a declaration of intent for a third party's liability, and thus the defendants are invoked. Thus, the plaintiff also has the effect on the defendants. Accordingly, the court below's fact-finding and determination that the defendants are liable for damages within the limit of 210,000 won per one package of neglect in the agreement with the fishermen who cause other fishing village fraternity, is just, and it cannot be said that the plaintiff erred by misapprehending the facts in violation of the rules of evidence or by misapprehending the legal principles on the interpretation of the contract and the contract for the third party, and there is no reason for the plaintiff's appeal on this part.

C. In addition, even in the expression of intent to bear the above obligation for the third party as recognized by the court below, the plaintiff, the actor, can unilaterally withdraw the above obligation until the victim, the third party, asserts the intention to make a profit. However, considering the records, the submission of the second letter cannot be said to have been the purpose of withdrawing the above obligation, and there is no other data that the plaintiff withdrawn the above obligation prior to the defendants' expression of intent to bear the obligation. Thus, although the court below did not decide on the plaintiff's assertion, it was erroneous, but it did not affect the conclusion because it would be dismissed, and there is no reason to argue that this part of the plaintiff's non-performance is the object of the plaintiff's non-performance.

D. In addition, as long as the content of the Plaintiff’s expression of intent to bear the same amount as that of the other victims is interpreted as having been recognized by the lower court, the amount of compensation to be paid by the Plaintiff to the Defendants, the victims, is not the actual amount of damage, but the amount of compensation actually paid by the Plaintiff to the other victims. As such, the lower court did not require further deliberation on how much the actual amount of damage was actually paid by the Defendants, as argued in the petition for final appeal. Therefore, there is no reason to issue an appeal by the Defendants disputing this part.

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

Justices Yoon Jae-sik (Presiding Justice)