[1] Whether farming business conducted in inland waters artificially created through the diversion of private farmland constitutes a reported fishery business under the former Inland Fisheries Development Promotion Act or the former Fisheries Act (negative), and the standard for determining whether there is an obligation to compensate for fish farming business within inland waters not falling under a reported fishery business under the former Inland Water Fisheries Development Promotion Act or the former Fisheries Act

[2] The method of claiming compensation for losses due to the designation of predetermined river land or river work under the former River Act

[1] Article 3-2 of the former Inland Fisheries Development Promotion Act (amended by Act No. 5153 of Aug. 8, 1996) does not apply this Act to inland waters which are not public waters (paragraph (1). Since Article 3-2 of the same Act does not apply to inland waters which are not public waters, and Article 3-2 of the same Act provides that inland waters which are not public waters shall not be subject to the above Fisheries Act, and it shall not be subject to the application of this Act in cases where inland waters are connected to public waters (paragraph (2). Thus, the provisions concerning licensed fisheries, permitted fisheries, or reported fisheries under the above Act are not applicable to inland waters which are artificially used exclusively for private land and do not fall under public waters. In addition, Article 3 of the former Fisheries Act (amended by Act No. 5131 of Dec. 30, 1995) provides that this Act shall apply to inland sea waters artificially created for the purpose of marine, vacant, or fishing, the above farming Chapter and inland waters shall not be subject to the above Fisheries Act, therefore, which requires the artificially reported or reported fisheries under the above Act.

[2] According to Article 74 of the former River Act (amended by Act No. 5893 of Feb. 8, 1999), in order to compensate for losses due to the designation of predetermined river land or river work, a consultation with the river management agency shall first be made in accordance with the provisions of the above Article, and if such consultation is not reached or it is impossible to hold such consultation, a petition for adjudication shall be filed with the competent Land Tribunal. In the event of an objection to such adjudication, the compensation can only be filed according to the result of an administrative litigation against the competent Land Tribunal, and the direct river management agency or the State shall not claim compensation for

[1] Articles 3-2 (see current Article 3), 7 (see current Article 6 of the Inland Water Fisheries Act), 8 (see current Article 9 of the Inland Water Fisheries Act), 9 (see current Article 11 of the Inland Water Fisheries Act) of the former Inland Water Fisheries Development Promotion Act (Amended by Act No. 5153, Aug. 8, 1996); Article 3 of the former Fisheries Act (Amended by Act No. 5131, Dec. 30, 1995); Article 74 of the former River Act (Amended by Act No. 5893, Feb. 8, 199)

[2] Supreme Court Decision 93Da46827 delivered on June 28, 1994 (Gong1994Ha, 2086) Supreme Court Decision 2001Da40879 delivered on September 14, 2001 (Gong2001Ha, 2228)

Plaintiff (Attorney Kim Jong-soo, Counsel for plaintiff-appellant)

Korea

Gwangju High Court Decision 99Na3265 delivered on November 8, 2000

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

1. Factual basis

According to the judgment of the first instance as cited by the court below and the records, the facts of this case are as follows.

A. On March 19, 191, the Plaintiff was subject to the fishery inspection of approximately 2,456 square meters in the operational zone from the Gun of Jindo-gu, Jeollabuk-do, and about 15 square meters in snive fish species, which are snived of private land, and was engaged in the snive fish farming business using a water tank installed by converting the snive water tank into private land, and installed a fish farming farm on the said land by October 21, 1991, with a certificate of report on the aggregate of the answers of 2,602 square meters in 17 lots, which are owned by the Plaintiff, from the head of Jananananan-Gun, Yan-gu, and the Plaintiff was engaged in the snive fish farming business.

B. On June 4, 1993, the Plaintiff was issued a fishery inspection under subparagraph 15, which was not changed in the operating area of the above fish farm and the fishery inspection under subparagraph 15 of the same Article. On the following day, the Plaintiff was issued a fishery inspection under subparagraph 25, which is composed of 5,058 square meters (the total area of 2,602 square meters in a 2,456 square meters in an existing fish farm) in the area of operation and 5,058 square meters (the total area of 2,602 square meters in an existing fish farm) in the area of operation of the fish farm,

C. On December 16, 191, the designation and public notice of predetermined river land (No. 772 of the Construction Notice) was made for the construction of a multipurpose dam for the Defendant’s construction through the Korea Water Resources Corporation (hereinafter referred to as the “purpose dam”), the Plaintiff’s site was incorporated into the site for the construction of the Yongsan Dam. The construction implementation plan was approved on December 26, 1992, and the construction of the Yongsan Dam was commenced around that time.

D. On November 22, 1994, the Governor of the Governor of the Jeollabuk-do Dam Construction Support Corporation in charge of compensation for losses related to the construction of the Yong-do Dam paid to the Plaintiff KRW 1,734,830,740, the total amount of profit for both businesses and the value of remaining facilities, as compensation for losses for the relevant aquaculture business, and thereafter, on April 23, 1996, KRW 19,30,000,000,000,000,0000,000,0000,000,000,000,000,000,

2. Plaintiff’s assertion and judgment of the court below

A. On October 21, 191, among the aquacultures subject to inspection of fishery business in subparagraph 25, the Plaintiff: (a) installed a pipe of alinium at a point less than 30 meters away from the existing snnish culture, subject to inspection of fishery business in subparagraph 15; and (b) installed a sninium at a point less than 30 meters away from the existing snish culture, which is subject to inspection of fishery business in subparagraph 15; and (c) installed a snin tank of 27.3 meters in length and 13.3 meters in width within the facility; and (d) the above snin pattern is a separate aquaculture facility distinct from the appearance; and (e) used the sninish culture and sold 35,873 kilograms in quantity from the sninish culture to November 18, 194; and (e) the Plaintiff did not pay compensation for losses to the sninish culture business in this case due to construction of the snin dam.

B. As to this, the court below rejected the plaintiff's report on fish farming, which the plaintiff had been the head of Jinan-gun, for the so-called "report requiring acceptance" which takes effect only upon the plaintiff's acceptance of the administrative agency (see Article 99Da37382, May 26, 200 and Articles 9, 10, and 16 of the former Inland Water Fisheries Development Promotion Act (amended by Act No. 5153, Aug. 8, 1996; hereinafter the same), and Article 28 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 14058, Dec. 31, 1993). Since the plaintiff's report on fish farming, which had been the head of Jin-gun-gun Gun, newly added to the category of the cultivated dam, was executed and the inspection of No. 25 of the plaintiff's fish farming project was conducted under the premise that the plaintiff's report was made under the premise that the construction was made within six months after the date of the plaintiff's announcement.

3. Judgment of party members

Except as otherwise expressly provided, Article 3-2 of the former Inland Fisheries Development Promotion Act (amended by Act No. 5153, Aug. 8, 1996; hereinafter the same) does not apply this Act to inland waters other than public waters (paragraph (1). Since paragraph (2) does not apply to inland waters other than public waters, which are inland waters connected to public waters (paragraph (2). Thus, there is no room for applying the provisions concerning licensed fisheries, permitted fisheries, or reported fisheries as prescribed by the above Act to the inland waters of this case of the Plaintiff, which are artificially created for the exclusive use of the Plaintiff’s private land and do not fall under public waters.

In addition, Article 3 of the former Fisheries Act (amended by Act No. 5131, Dec. 30, 1995; hereinafter the same) provides that this Act shall apply to sea, vacant land, or sea waters artificially developed for the purpose of marine, fishery, and so inland waters such as the plaintiff's aquaculture can not be subject to the application of the former Fisheries Act.

Thus, the plaintiff's business of cultivating fresh fish of this case cannot be seen as a reported fishery under the former Inland Fisheries Development Promotion Act or the former Fisheries Act, which requires a report under the relevant Acts and subordinate statutes. Thus, the issue of whether the obligation to compensate for the loss arises or not shall not be determined on the basis of the existence of the report or the time.

Nevertheless, the court below rejected the plaintiff's claim on the ground that the plaintiff's fish farming business in this case was conducted after the designation and public notice of the predetermined river land in this case, and the amount of compensation for fish farming business already paid to the plaintiff in relation to the above predetermined river construction business was not paid as compensation for losses, and that the plaintiff's discontinuance of the fish farming business in this case was caused by the construction of a dam, without examining and determining whether it is reasonable to view that the fish farming business in this case was conducted after the designation and public notice of the predetermined river land in this case. Thus, the court below rejected the plaintiff's claim on the ground that the plaintiff's fish farming business in this case was conducted after the designation and public notice of the predetermined river land in this case, and the court below erred by misapprehending the legal principles on fish farming business in private waters, not public waters, and failing to exhaust all necessary deliberations. The ground of appeal pointing this out is justified.

However, even according to the plaintiff's assertion of this case seeking compensation for damages related to the construction of the Yongsan Dam, the cause of the claim for compensation is unclear. Thus, if the plaintiff's claim for compensation for damages due to the designation of predetermined river land or river construction work is sought pursuant to Article 74 of the former River Act (amended by Act No. 5893 of Feb. 8, 199) which applies to this case, he shall first consult with the river management agency in accordance with the above provisions, and if the consultation is not reached or it is impossible to hold such consultation, he/she shall apply for a ruling to the competent Land Tribunal. If he/she is dissatisfied with the adjudication, he/she may immediately file an administrative litigation against the competent Land Tribunal on the adjudication itself, and may not claim the compensation for damages by a direct river management agency or the state (see Supreme Court Decision 2001Da40879 of Sept. 14, 201). It shall be clear whether the plaintiff's claim for compensation for damages of this case falls under the above cases.

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jae- Jae (Presiding Justice)