Whether the so-called "business fishery right" under the former Fisheries Act can be recognized even after the enforcement of the amended Act (negative)

Article 40 (1) of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990), which was recognized as the basis of the above amendment, has no legal basis for recognizing the so-called ‘business-related fishery right' as a more superior to the rights of the reported fishery business operator or as an independent real right after the enforcement date of the Act (amended by Act No. 4252 of Feb. 1, 1991). However, if a business-related fishery right holder reports a legitimate fishery business, he/she can only receive appropriate compensation or compensation in accordance with the relevant Act and subordinate statutes

Article 6 subparag. 2, Articles 16(1), 17, 40(1), and 75 of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990), Article 72 of the former Enforcement Decree of the Fisheries Act, Article 2 subparag. 6 and 7, Article 6 subparag. 2, Article 16(1), and Article 44 of the Fisheries Act, Article 11(2) of the Addenda of the Fisheries Act, Articles 61 and 62 of the Enforcement Decree of the Fisheries Act

Supreme Court Decision 62Da882 delivered on February 28, 1963 (No. 11 ①, 147)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Spanes

Seoul Metropolitan Area New Airport Construction Corporation

1. The plaintiff (Appointed) shall dismiss the main claim and the conjunctive claim shall be dismissed;

2. Litigation costs shall be borne by the plaintiff.

The defendant shall pay to the plaintiff (appointed party; hereinafter the plaintiff) the amount of 9,068,077,000 won and the amount of 5% per annum from June 30, 1994 to the date of the pronouncement of this case, and 25% per annum from the next day to the date of full payment.

1. Judgment as to the main claim

A. The following facts can be acknowledged in light of the following facts in the following: the type of fishery of the designated parties, the defendant's evidence Nos. 1 to 60 (a certified copy of each resident registration), Gap evidence Nos. 2 (a certificate), Gap evidence Nos. 3 (a certificate), Gap evidence Nos. 4 (a fishing ground drawings), Gap evidence Nos. 5-1 through 54 (a fishery report certificate), Eul evidence Nos. 1-1 through 4 (a public notice of each compensation plan and public relations guide), Eul evidence Nos. 8-1 through 3 (a certified copy of each resident's registration cancellation), and the testimony of the witness Nos. 8-1 through 3 (a certified copy of each resident's registration cancellation), the results of this court's verification, the appraisal of the appraiser lectures, sub-ju, the appraisal results of this court, the Minister of Construction and Transportation of Incheon Fisheries, and the fact-finding results

① On May 4, 1992, the Minister of Construction and Transportation started construction projects of new international airports in the Seoul Special Metropolitan City with the approval of reclamation of 46,524,354m2 from the head of the Incheon Special Metropolitan City and Metropolitan City under Article 29 of the Public Waters Reclamation Act and Article 3 of the Enforcement Decree of the same Act.

② On July 30, 1992, the Minister of Construction and Transportation approved the transfer and acquisition of the rights and duties concerning the reclamation of public waters by the head of Incheon Special Metropolitan City and Metropolitan City as the Korea Airport Corporation, and had the Korea Airport Corporation implement the said new international airport construction project.

③ From April 1, 1993, the Korea Airport Corporation commenced the construction work for filling the land as an executive secretary of the above Young-dong and Yongsan-dong.

④ The designated persons, among those who have captured or collected fish and shellfish, such as naturally occurring, brush, sweak, sweak, sweak, sweak, sweak, sweak, sweak, sweak, sweak, sweak, sweak, sweak, 48, sweak sweak, 50, 57, 58, 54 of the designated persons, excluding the designated persons (46), 50, 57, 58, 58, 191 under the Fisheries Act, on October 31, 191, in which the Incheon Central Airport reported to the head of the Incheon Metropolitan City Office on the first place of the sweakbak-dong, which was the first place of business in which the designated persons had not agreed on March 6, 193 before reclamation works commenced, but failed to comply with the above reclamation works.

⑤ Under Article 5 of the Addenda to the Seoul Metropolitan Area New Airport Construction Corporation Act, which was enacted on August 3, 1994 and enforced on September 1, 1994, the Defendant comprehensively succeeded to the rights and obligations of the Korea Airport Corporation.

B. Whether to recognize so-called "business fishery right"

(1) The plaintiff's assertion

The plaintiff's above act of fishery shall be protected by the so-called "work fishery right" under Article 16 and subparagraph 3 of Article 6 of the Public Waters Reclamation Act. However, since the defendant started the above reclamation work without any prior compensation under Article 17 of the same Act and Article 81 (3) of the Fisheries Act and lost the function of the above "work fishery right", the defendant asserts that he is liable to compensate for damages suffered by the designated parties due to the above tort, the contents and validity of the so-called "work fishery right" of the plaintiff's assertion are summarized as follows.

First, the practice fishery right is a right to manage the fishery business of a person who is recognized as the majority of neighboring people by the fact that the fishery business has been continuously captured and gathered according to the practice in a certain water surface, and it is a real right as a fishery right according to the practice equivalent to the fishery right under the Fisheries Act existing regardless of a license or permission of an administrative authority or a report

Second, the current reported fishery regulations merely stipulate that a person who is not a customary fishery right holder and intends to begin the first fishery business shall report prior to commencement of the first fishery business, and even if a person who wants to conduct the first hand fishery business reports under the above provisions, such a report is excluded from punishment, the right to conduct the fishery business or the act of fishery business is not guaranteed, and if the reporter intends to enter a certain water surface, he/she may be refused to enter a fishing ground from the person who has an exclusive fishery right on the water surface (the letter of expansion of claims and change of cause as of April 24, 195).

Third, the practice fishery right exists even before the common fishing right is established, but even if the common fishing right is established in the fishing ground that has already been held exclusively and exclusively, the previous act of fishery can be carried out equally with the previous one on the basis of the practice fishery right, which is a real right that he has already held. However, there is a burden to consult and coordinate the fishery activity with the new common fishing right holder, and it conforms to the purpose of the Fisheries Act, which intends to protect the practice fishery right by interpreting the purpose of the Fisheries Act to the effect that anyone is a practice fishery right holder, a joint fishing right holder, and a person subject to mediation is not clear, and to disclose it as a report and registration in order to clarify it (the preparatory document of May 12, 1995).

(2) Relevant provisions and precedents at the time of enforcement of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990)

According to Article 6 subparag. 2, Article 16(1), and Article 17 of the former Public Waters Reclamation Act (amended by Act No. 1990, Aug. 1, 190), which was enforced before the commencement of the reclamation license and the commencement of construction work of public waters, a person who has obtained a license for reclamation of public waters shall not commence construction work to compensate for losses to the person who has the right without his/her consent if he/she has the right to the public waters, or unless he/she has installed facilities for preventing such losses. A person who has the right to the public waters shall include a holder of fishery right or a passenger under Article 40(1) of the former Fisheries Act in a case where he/she has no right to the public waters, and Article 40(1) of the former Fisheries Act (amended by Act No. 1990, Aug. 1, 1990) provides that "No person who has been engaged in fisheries at a certain public waters before the license was granted, may claim compensation for damages from such public waters or profits protected by the above provisions of the former Act.

(3) Contents of the amended Fisheries Act and the Public Waters Reclamation Act

Article 16 (1) of the Public Waters Reclamation Act (amended on August 1, 1990) provides that "any person who has a license for reclamation of public waters with the right shall compensate for losses which he causes to the owner of such right or install facilities preventing such losses under the conditions as prescribed by the Presidential Decree." Article 6 of the same Act provides that "any person who has a right to public waters" means any person who has a license for occupancy of public waters under the provisions of Acts and subordinate statutes, Article 2 subparagraph 7 of the Fisheries Act or any person who has a fishery right under the provisions of Acts and subordinate statutes, Article 3. 4. 4. 4. 4. 6. 1. 2. 1. 2. 1. 2. 3. 3. 1. 4. 1. 1. 2. 1. 4. 1. 8. 2. 1. 3. 1. 3. 1. 1. 4. 1. 1. 3 . 1. . . 1. 3 . . . . . . . . . . . . . . 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...... . . . . . . . . ..... ............ . .... . . . . ... ....... ....................................................................................................................... fishery fishery fishery fishery fishery fishery fishery fishery fishery fishery fishery fishery fishery fishery fishery fishery fishery fishery fishery fishery fishery fishery fishery fishery fishery fishery fishery fishery fishery fishery fishery fishery fishery fishery fishery fishery fishery fishery fishery fishery fishery fishery fishery fishery fishery......................................

(4) Status of a customs fisherman after the amendment of the law

In light of the contents and circumstances of the amendment of the Fisheries Act and other relevant Acts and subordinate statutes, the so-called ‘business fishing right', which was recognized as the basis of Article 40(1) of the former Fisheries Act, which was first deleted, has no legal basis for recognizing the so-called ‘business fishing right' after the date of the enforcement of the above Act ( February 1, 1991), as alleged by the plaintiff, as the plaintiff alleged, is superior to the rights of the reported fishery business operator, etc., or as independent goods. However, even if a business fishing right holder reports a legitimate fishing right, it is reasonable to deem that the reported fishery business operator is entitled

In other words, the amendment of related laws such as the Fisheries Act, which was made on August 1, 1990, is to clarify clearly the status of a customs fishermen, relationship with a reported fishery business operator, grounds for compensation, etc. which was not clear in the previous positive laws, thereby preventing confusion in interpretation, and also clarifying the criteria for compensation, and on the other hand, it should be considered as the result of the productive legislative action to reasonably limit their rights.

C. Conclusion

Ultimately, the interpretation of the amended current Fisheries Act is a right to manage the fishery of a person recognized as the majority of neighboring people by continuously catching and gathering marine animals and plants according to the practice on certain waters claimed by the Plaintiff, and the fishery right according to the practice equivalent to the fishery right under the Fisheries Act existing under the Fisheries Act, regardless of the licence, permission or report by the administrative authority, is not recognized. Thus, the Plaintiff’s primary claim seeking damages to the Defendant on the ground that the customary fishery right of the designated person was unlawfully infringed due to the reclamation work of public waters enforced after the amendment of the above Act is without merit.

2. Judgment on the conjunctive claim

The plaintiff, preliminaryly, filed a claim for compensation for losses under Article 16 of the Public Waters Reclamation Act, on the ground that the Defendant's practice and fishery right of the designated person was infringed by the Defendant's act of reclaiming the public waters. The person who has the right to the public waters as provided for in Article 6 of the Public Waters Reclamation Act, shall consult with the reclamation licensee pursuant to Article 16 of the same Act, and may file a petition for a ruling with the Land Tribunal pursuant to Article 30 of the Enforcement Decree of the same Act, if the agreement is not reached or it is impossible to reach an agreement. In the event of an objection to the adjudication, the above Land Tribunal's disposition can only be contested by an appeal litigation and can not immediately

3. Conclusion

Thus, the plaintiff's primary claim is dismissed as without merit, and the lawsuit on the conjunctive claim of this case is dismissed as illegal.

Judges Lee Hong-ju (Presiding Judge)