Whether a non-licensed fish farmer is the former Fisheries Act (Law No. 4252, Aug. 1, 1990)

According to Articles 2, 8(2) and (4), and 89 of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990), the term "a person who has engaged in fisheries in a common fishing area may continue to engage in fisheries on the surface of the sea, even if a person who has engaged in fisheries and captured or gathered marine animals or plants only for a long time by using a certain public water surface and has established a common fishing right after such public waters (such benefits may be claimed to a common fishing right holder and may also be claimed to a common fishing area, and a person who has collected or gathered marine animals or plants by using facilities, such as stocks, etc. for profit-making purposes, shall be entitled to obtain a license from the Do governor and shall not engage in fisheries without obtaining such a license, and Article 40(1) of the same Act provides that "a person who has engaged in fisheries in a common fishing area shall not refuse to engage in fisheries on the ground of its previous practice." The purport of the above provision is that a person who has collected or collected marine animals or plants can be claimed from a person who has already established a common fishing right.

Articles 2, 8(1), 8(4), 40(1), and 89 of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 190)

Supreme Court Decision 69Da173 Decided March 31, 1969 (No. 17 ① Residents, 408) (Gong1989, 1215), 93Da45701 Decided July 11, 1989 (Gong1994Sang, 132)

Plaintiff 1 and 7 others Plaintiff’s Clinical Order

Korea Electric Power Corporation (Attorney Kim Sejong-han, Counsel for defendant-appellant)

Daejeon High Court Decision 93Na5251 delivered on October 6, 1994

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

1. Summary of the reasoning of the judgment below

According to the reasoning of the judgment below, even if the plaintiffs were to have been held liable for damages due to the above 10 years ago, the court below held that the above 10th anniversary of the above 4th anniversary of the above 4th anniversary of the above 4th anniversary of the above 4th anniversary of the fact that the above 4th anniversary of the above 4th anniversary of the fact that the above 19th anniversary of the above 1967 fishing industry had been held liable for damages due to the above 19th anniversary of the above 1967 fishing industry's failure to secure the above 1th anniversary of the above 4th 1967 fishing industry's legal practice, the court below held that the above 1th 4th 5th 2nd 197 fishing industry's failure to secure the above 1st 1st 1st 1st 8th 196 fishing industry's losses due to the above 4th 1st th th 1967 fishing industry's failure to secure the above 1st 1st th 1st th th th 3th e fishing industry.

2. Judgment on the grounds of appeal

First, we examine the first and second grounds for appeal.

A. According to the records, in executing the public waters reclamation project (industrial base development project) for the construction of the waste coal treatment plant of the YGG, the public waters of this case is owned by the Defendant, without obtaining consent from the Plaintiffs who have neglected fishing rights pursuant to the laws and regulations or without receiving compensation for losses due to the Plaintiffs’ loss of fishing rights, and thereby making it impossible to exercise the right of neglecting fishing rights due to the Plaintiffs’ practice. Thus, the Defendant is liable to compensate the Plaintiffs for the damages caused to the Plaintiffs, as the executor of the above project.

However, according to Article 15 of the Industrial Base Development Promotion Act which was in force at the time of 1982, in order to secure a site necessary for industrial base development projects such as construction of the waste coal treatment plant in this case, the Minister of Construction and Transportation's approval of the implementation plan shall be deemed to be a license of the Minister of Construction and Transportation under Article 4 of the Public Waters Reclamation Act. On the other hand, pursuant to Article 6 subparagraph 2 of the Public Waters Reclamation Act (amended by Act No. 4252 of Aug. 1, 190), Article 16 (1), and Article 17 of the Public Waters Reclamation Act (amended by Act No. 4252 of Aug. 1, 1990; hereinafter the same), a person who has obtained a license for reclamation of public waters shall not commence construction work unless he compensates the person who has the right to the public waters or installs facilities for preventing the loss, and in addition to a fishery right holder, a person who has the right to the public waters shall not be included in a fishery holder

Here, if the plaintiffs who have engaged in the business of neglecting to own shares in the public waters of this case fall under a fishery holder under Article 40 (1) of the former Fisheries Act without obtaining the consent of the plaintiffs or without undergoing compensation procedures for the plaintiffs, the defendant's act of implementing the reclamation project of this case can constitute a tort as alleged by the plaintiffs. However, if the plaintiffs do not fall under a fishery holder under the above provision of the Act, the defendant's act is not likely to constitute a tort, and the defendant is not liable to compensate for the damages of the plaintiff's alleged fishery right. Thus, the issue of this case depends on whether the plaintiffs are included in a fishery holder under Article 40 (1) of the Fisheries Act.

Therefore, this paper will examine whether the plaintiffs are included in a fishery holder under Article 40 (1) of the Fisheries Act.

B. Article 2 of the former Fisheries Act provides that the term "fishery business" refers to the business of catching or cultivating marine animals and plants, and the term "fishing right" refers to the right to operate the fishery by obtaining a license under the provisions of the above Act, and Article 8 (1) and (4) provides that a person who intends to run the fishery business by dividing a certain area of waters and other facilities shall obtain a license from the Do governor, and Article 89 provides that a person who conducts the fishery business without a license shall be punished for a person who conducts the fishery business without a license. Thus, the residents of the sea shall be punished for a person who conducts the fishery business without a license. Therefore, the business of cultivating and collecting the neglected by the facilities such as the stocks for profit on the surface of the sea belongs to the business of cultivating marine animals and plants under the above Act, and the business of cultivating marine animals and plants shall be allowed by obtaining a license from the Do governor.

Meanwhile, Article 40 (1) of the above Act provides that "a holder of a fishery right for a joint fishery business shall not refuse to enter a fishery business place by its previous practice." This purport is that a person who has continued to use certain public waters and captured or gathered marine animals and plants for a long time without a license shall continue to engage in the fishery business even after the joint fishery right is established for the public waters concerned (this interest may be claimed and exercised against a joint fishery right holder, and it shall not be the established opinion of the party member that claims the rejection thereof against a third party or claim compensation for damages from it), and the fishery right according to such a practice can only be established for those who have engaged in the joint fishery business as provided in Article 8 (1) of the above Act, and there is no room to establish a cultivation business for artificially propagating marine animals and plants, such as shellfishes, seaweeds, etc. by dividing a certain area of waters (the same applies to political fishery business).

C. As recognized by the court below, if the plaintiffs have been engaged in the business of neglecting stocks for a long time in the public waters of this case, this constitutes the business of cultivating fish under Article 8 of the former Fisheries Act and the business of acquiring the right, as seen above, is not required to obtain a license from the Do governor, and the right to obtain such a license cannot be acquired by the practice.

Therefore, as alleged by the plaintiffs, even though the non-licensed fish farm lost its function as a neglected fish farm due to changes in the ecosystem due to the defendant's change in the reclamation of public waters, such as embankments, etc., in light of the purport of Article 6 subparagraph 2, Article 16 (1), and Article 17 of the Public Waters Reclamation Act, the defendant does not bear an obligation to compensate the plaintiffs for losses. Therefore, although the defendant's implementation of the public waters reclamation project of this case without taking the compensation procedure for losses under the Public Waters Reclamation Act against the plaintiffs does not constitute a tort, the defendant shall not be held liable

D. Nevertheless, the court below held that Article 40 (1) of the former Fisheries Act generally recognizes the existence of fisheries in accordance with the practice, and that the fisheries in accordance with such practice constitutes a legal status to seek compensation for damages in the event of infringement by a third party even if the authority did not obtain permission from the authority, and held that the non-licensed fish farming in this case constitutes a fishery right under the above provision of the Act and recognized the defendant's liability for damages by recognizing the establishment of tort on this premise. The court below erred in the misapprehension of legal principles as to the fishery right in accordance with the practice under Article 40 (1) of the former Fisheries Act, and there is a ground to point this out.

3. The judgment of the court below is reversed without examining the remaining grounds of appeal, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-sik (Presiding Justice)