[1] The method of determining the cost of lawsuit in case of partial loss

[2] In a case where a person operating a fish farming in a private water surface obtains a fish farming license under Article 7 (1) 1 of the former Inland Water Fisheries Development Promotion Act in accordance with Article 7 (3) of the same Act, whether the person is the holder of a licensed fishery right under the same Act (affirmative)

[1] In a case of partial loss, the litigation cost to be borne by each party may be determined by the court at its discretion by taking into account all the circumstances, and it does not necessarily have to be determined by the ratio of the claimed amount and the cited amount.

[2] Article 3-2 (1) of the former Inland Fisheries Development Promotion Act (amended by Act No. 6255 of Jan. 28, 200) provides that the above Act shall apply to inland waters which are not public waters, if there are special provisions. Article 7 (3) of the same Act provides that a person who operates fish farming business with facilities stipulated in Article 20 (1) of the Enforcement Decree of the Inland Water Fisheries Development Promotion Act (amended by the Enforcement Decree of the Inland Water Fisheries Act No. 16930 of Jul. 29, 200) may obtain a license under Article 7 (1) 1 of the same Act, and Article 11 (1) of the same Act provides that a person who obtains a license for fish farming business under Article 7 of the same Act shall obtain a fishing right at the time of obtaining a license, and Article 7 (3) of the same Act provides that a person who obtains a license for fish farming business under Article 7 (1) of the same Act constitutes a special fishery right under Article 7 (1) 7 (3) of the same Act.

[1] Article 101 of the Civil Procedure Act / [2] Article 3-2 (1) (see current Article 3 (1) of the Inland Water Fisheries Development Promotion Act (amended by Act No. 6255 of Jan. 28, 200), Article 7 (1) 1 (see current Article 6 (1) 1 of the Inland Water Fisheries Act), Article 7 (3) (see current deletion), Article 11 (1) (see current Article 7 (1) of the Inland Water Fisheries Act), Article 20 (1) (see current Article 7 (1) of the Enforcement Decree of the Inland Water Fisheries Development Promotion Act (amended by Presidential Decree No. 16930 of Jul. 29, 200)

[1] Supreme Court Decision 85Nu180 delivered on December 24, 1985 (Gong1986, 342), Supreme Court Decision 95Da5696 delivered on October 25, 1996 (Gong1996Ha, 3415), Supreme Court Decision 98Da18506 delivered on January 18, 200 (Gong2000Sang, 446) / [2] Supreme Court Decision 2004Du6853 Delivered on April 26, 2007 (Gong2007Sang, 790)

[Judgment of the court below]

Korea

Gwangju High Court Decision 2005Na3419 decided June 24, 2005

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

The grounds of appeal are examined.

1. Judgment on the Plaintiff’s grounds of appeal

A. As to the first ground for appeal

The Plaintiff’s ground of appeal No. 1 is premised on the Plaintiff’s ground of appeal that the extension of license term under each subparagraph of Article 10(2) of the former Inland Water Fisheries Development Promotion Act (amended by Act No. 5153, Aug. 8, 1996; Act No. 6255, Jan. 28, 2000; hereinafter “former Inland Water Fisheries Act”) would have become naturally permitted at the expiration of the term of validity.

However, Articles 6 and 11(2) of the amended Inland Water Fisheries Act (amended by Act No. 6255, Jan. 28, 200) also remove the provisions of Article 7(3) of the former Inland Water Fisheries Act, which had been made to operate a fish farming business with a license and change the same into a reported fishery business, and Article 2(2) of the Addenda provides that a person who obtained a license for a fish farming business in a private water surface under Article 7(3) of the former Inland Water Fisheries Act shall be subject to the previous provisions until the expiration date of the term of validity of the fishery business, regardless of the instant road construction, the Plaintiff becomes unable to operate a licensed fishery business any longer when the term of validity expires due to the change in the above Act, and therefore, it does not constitute a case where the extension of the term of validity due to the instant road construction is not permitted.

In addition, Article 62 [Attachment 4] of the former Enforcement Decree of the Fisheries Act (amended by Presidential Decree No. 15241, Dec. 31, 1996; hereinafter the same) is required to calculate the amount of compensation for losses in accordance with the formula prescribed in each item. Thus, it is reasonable to calculate the amount of compensation in accordance with the formula prescribed in the above provision, inasmuch as the Plaintiff’s licensed fishery falls under “case where the fishery right is suspended” as stated in attached Table 1.1. Item (b) of the above [Attachment 4], so long as the amount of compensation equivalent to the amount

In light of the above circumstances and records, the court below is just in calculating the amount of damages by recognizing the period of suspension of fishery business from March 2000 to November 9, 2003, which was the expiration date of the validity period, as the period of suspension of fishery business from March 2000, and there is no error in the misapprehension of legal principles as to the assessment of damages due to the suspension of fishery right as otherwise alleged in the ground of appeal.

B. Regarding ground of appeal No. 2

In a case of partial loss, the costs of lawsuit to be borne by each party may be determined by the court at its discretion by taking into account all the circumstances, and it does not necessarily have to be determined by the ratio of the claimed amount and the quoted amount (see Supreme Court Decision 85Nu180 delivered on December 24, 1985, Supreme Court Decision 98Da18506 delivered on January 18, 200).

In light of the above legal principles and records, it is reasonable that the court below ordered the plaintiff to bear 1/2 of the costs of this case and there is no violation of law as otherwise alleged in the ground of appeal.

2. Judgment on the Defendant’s grounds of appeal

A. As to the first ground for appeal

Article 3-2 (1) of the former Inland Water Fisheries Act provides that the above Act shall apply to inland waters which are not public waters, if special provisions exist, and Article 7 (3) of the same Act provides that when a person operating a fish farming business files an application for a license pursuant to Article 7 (1) 1 of the Enforcement Decree of the same Act with the facilities stipulated in Article 20 (1) of the same Act, he/she may obtain a license pursuant to Article 7 (1) 1 of the same Act. Article 11 (1) of the same Act provides that a person who has obtained a license pursuant to Article 7 of the same Act obtains a fishing right at the time of obtaining a license. Article 7 (3) of the same Act provides that Article 7 (3) of the same Act is "special provisions" under Article 3-2 (1) of the same Act and therefore, in cases where he/she obtains a license pursuant to Article 7 (3) 1 of the same Act, he/she constitutes a licensed fishing right holder subject to the same Act

In light of the above legal principles and records, the court below is just in taking the plaintiff's licensed fishery as a licensed fishery under Article 7 of the former Inland Water Fisheries Act and calculating the amount of damages equivalent to the compensation for losses pursuant to Article 62 (Attachment Table 4) of the former Enforcement Decree of the Fisheries Act, and there is no violation of the law as otherwise alleged in the ground of appeal.

Supreme Court Decision 200Da69361 Decided February 5, 2002 cited in the ground of appeal by the Defendant is related to the case where only a report on fish farming was completed without obtaining a license for fish farming business under Article 7 (1) 1 of the former Inland Water Fisheries Act pursuant to Article 7 (3) of the same Act, and it is not appropriate to invoke the case in this case, unlike this case.

B. Regarding ground of appeal No. 2

Article 25(2) of the former Enforcement Rule of the Special Act on the Acquisition of Land for Public Use and Compensation therefor (amended by Ordinance of the Ministry of Construction and Transportation No. 121, Oct. 15, 1997; repealed by Ordinance of the Ministry of Construction and Transportation No. 344, Dec. 31, 2002; hereinafter “former Enforcement Rule of the Special Act on Public Use”) provides that the period of suspension of business shall not exceed three months, except in special cases, in evaluating operating profits corresponding to the period of suspension of business. Therefore, the period of suspension of business exceeding three months may be recognized in special cases

Based on the evidence of employment, the lower court recognized that the period required for the relocation of the above aquaculture was two years, and recognized as two-year period, including the selection of a lot of land, purchase of land, design, installation of facilities, and preparation for fishing activities in order to move the aquaculture in the area of Jeollabuk-do where the aquaculture of this case is located. In light of the records, the lower court’s determination is justifiable, and there is no error of law such as incomplete deliberation on assessment of losses

C. Regarding ground of appeal No. 3

The plaintiff's ground of appeal No. 3 is premised on the fact that the court below decided that the facilities, etc. of the aquaculture of this case were sold without relocating them, and according to the judgment below, the court below recognized the amount equivalent to the sale loss as the transfer cost in calculating the transfer cost of the aquaculture facilities, etc. is not because the court below determined that the facilities, etc. were sold without relocating them and calculated the amount of compensation. It is the purport of recognizing only the amount equivalent to the sale loss of the facilities, etc. as the transfer cost, considering that the transfer cost of the facilities, etc.

In addition, Article 62 [Attachment 4] of the former Enforcement Decree of the Fisheries Act and Article 25 of the former Enforcement Rule of the Special Act on Public Use shall be calculated in a specific manner in accordance with the formula stipulated in each provision. Article 62 [Attachment 4] of the former Enforcement Decree of the Fisheries Act provides that "amount of loss required for the transfer, collection, etc. of facilities, etc. or cultivated products" shall be "amount of loss required for the transfer, collection, etc. of facilities, etc." and Article 25 of the former Enforcement Rule of the Special Act does not provide that in calculating "amount of loss equivalent to the depreciation due to the transfer of business facilities, raw materials, products, goods, and other goods, etc.", if the calculated amount exceeds the sales loss amount of the relevant facilities, etc., the amount of such compensation shall be limited to the scope of sales loss, or the fixed expenses incurred during the period of suspension of fishery business or

Examining the above circumstances in light of the records, the court below is just in calculating the amount of damages including fixed expenses incurred during the period of suspension of fishery business or the period of suspension of business as prescribed in each of the above provisions, and there is no error in the misapprehension of legal principles as to the calculation of damages, as otherwise alleged in the ground of appeal.

D. Regarding ground of appeal No. 4

The Plaintiff’s compensation equivalent to the compensation for losses under Article 62(b) of the former Enforcement Decree of the Fisheries Act and Article 25 of the former Enforcement Rule of the Special Purpose Act among Article 62(Attachment Table 4) of the former Enforcement Decree of the Fisheries Act on the Plaintiff’s fish farming business is premised on the fact that the Plaintiff did not engage in the snish farming during the subsequent period of suspension of fishing as of March 2000, which is the date on which the tort was established. Thus, if the snishing of the snish light was discarded before March 2003 due to the instant road construction, or was affected by its growth or survival, it shall be reflected in the claim for damages due to the snishing death, etc., but it shall not be considered that it was abolished after March 200, or

The reasoning of the judgment below and records are acknowledged as follows. At the time of November 1, 1999, the Plaintiff’s aquaculture existed about 560,000 snish snish snish snish snish snish snish snish snish snish snish snish snish snish snish snish snish snish snish snish snish snish snish snish snish snish snish snish snish snish snish snish snish snish snish snish snish snish snish snish snish snish snish snish snish snish snish snish.

The conclusion of the court below is acceptable, and there is no error in the misapprehension of legal principles as to the calculation of damages as otherwise alleged in the ground of appeal.

3. Conclusion

Therefore, each appeal is dismissed, and the costs of appeal are assessed against each appellant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)