[1] The meaning of "a piscary under Article 2 subparagraph 7 of the Fisheries Act" under Article 6 subparagraph 2 of the Public Waters Reclamation Act

[2] Whether Article 2 subparagraph 7 of the former Fisheries Act and Article 11 of the Addenda to the former Fisheries Act (negative) are unconstitutional (negative)

[3] Whether compensation for losses under Article 16 of the Public Waters Reclamation Act can be claimed as a civil lawsuit (negative)

[1] In light of the legislative purport and the contents of the Public Waters Reclamation Act, a person who has the right under Articles 16 (1) and 17 of the same Act refers to a person who has the right under Article 6 of the same Act, and a person who has the right to the public waters under Articles 6 through 5 (1) of the same Act includes a holder of fishery right or a holder of fishery right under Article 2 subparagraph 7 of the Fisheries Act. Thus, it is insufficient to recognize the fact that a person is a holder of fishery under Article 2 subparagraph 7 of the Fisheries Act who has continuously captured and gathered marine animals and plants from a certain public waters to become a holder of fishery under Article 2 subparagraph 7 of the same Act. It is required to report the fishery business in accordance with Article 44 of the Fisheries Act, and register the matters concerning the fishery right holder's

[2] Article 40 of the Fisheries Act was amended on August 1, 1990; Article 2 subparagraph 7 of the Act provides for the definition of a fishery holder and a fishery holder; Article 11 of the Addenda as a transitional measure against a fishery holder; Article 81 of the Enforcement Decree of the Fisheries Act and Article 61 and Article 62 of the Enforcement Decree of the Fisheries Act (amended by Presidential Decree No. 1308 of Feb. 18, 191) provide for the compensation for losses to a reported fishery operator. Such amendment is not clearly clear in the language and text of the former Fisheries Act, which clearly regulates the meaning of a person due to a fishing practice or practice and regulates the criteria for compensation, thereby preventing confusion in interpretation and clarifying the criteria for compensation. Accordingly, it cannot be seen that there is any restriction on the status of a fishery holder under the provisions of the former Fisheries Act, which is in violation of the fundamental freedom of Article 2 subparagraph 7 of the Fisheries Act, Article 11 of the Addenda to the former Fisheries Act and Article 61 and Article 62 of the Enforcement Decree of the Fisheries Act.

[3] The compensation for losses under Article 16 of the Public Waters Reclamation Act is unlawful in a case where an agreement is not reached or it is impossible to reach an agreement, since it is filed by means of administrative litigation against the Land Tribunal by means of an adjudication by the Land Tribunal.

[1] Article 6 subparag. 2 and Article 16 of the Public Waters Reclamation Act, Article 2 subparag. 7 and Article 44(1) of the former Fisheries Act (amended by Act No. 5131 of Dec. 30, 195), Article 11 of the Addenda (amended by Act No. 5131 of Aug. 1, 1990) / [2] Article 2 subparag. 7 of the former Fisheries Act (amended by Act No. 5131 of Dec. 30, 1995), Article 11 of the Addenda (amended by Act No. 5131 of Dec. 30, 1995), Articles 13(2), 23(3), and 37(2) of the Constitution / [3] Article 16 of the Public Waters Reclamation Act, Article 26 of the Enforcement Decree of the Public Waters Reclamation Act

[1] Supreme Court Decision 94Do2458 delivered on November 10, 1995 (Gong1995Ha, 3962)

Plaintiff (Appointed Party) (Attorney Yoon Young-chul et al., Counsel for the plaintiff-appellant)

Seoul Metropolitan Area New Airport Construction Corporation (Attorney Choi Young-hoon, Counsel for defendant-appellant)

Seoul High Court Decision 95Na30309 delivered on December 7, 1995

The appeal is dismissed. The costs of appeal are assessed against the plaintiff (appointed party).

The grounds of appeal and supplemental appellate brief are examined together with some supplementary appellate brief not timely filed.

1. As to the misapprehension of legal principles as to the fishermen under Article 2 subparagraph 7 of the Fisheries Act or the right holder under the Public Waters Reclamation Act

The Public Waters Reclamation Act provides that any person who has a license for reclamation of public waters may 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 17 provides that any person who has a license for reclamation of public waters under the provisions of Article 5 (1) shall not commence construction work until he compensates for the losses or installs facilities under the provisions of paragraph (1) of the same Article, and Article 6 provides that any person who has a license for construction of public waters under the provisions of subparagraph 7 of Article 2 of the Fisheries Act shall be included in a fishery right holder or a fishery holder under the provisions of subparagraph 6 of Article 2 of the Fisheries Act who has a license for construction of marine animals and plants under the provisions of Article 16 (1) and Article 17 of the same Act shall be considered as a person who has a license for construction of marine animals and plants under the provisions of Article 6 of the same Act and who has a license for construction of marine animals and plants under the provisions of Article 6 of the same Act shall be considered as a person who has a license for construction of marine animals and plants under the provisions of Article 6 of the Fisheries Act.

The records reveal that the plaintiff and the designated parties did not have registered in the fishery right register within 2 years from the date of entry into force of the above Fisheries Act. Therefore, the court below's rejection of the main claim of this case under the premise that the plaintiff and the designated parties did not correspond to the person who has the right under the Public Waters Reclamation Act, and the court below's rejection of the main claim of this case under the premise that they are the right holder under the same Act, and there is no error of law by misunderstanding the legal principles as to the fishery holders under Article 2

The argument in the grounds of appeal that the fishery holder under Article 2 subparagraph 7 of the Fisheries Act includes not only the person who has reported the fishery business and registered the original fishery right register but also the person who has not registered the fishery business or the original fishery right register in the public waters where the joint fishery right is not established before the revision of the Fisheries Act enters into force but also the person who has not reported the fishery

2. As to the assertion that Article 2 subparagraph 7 of the Fisheries Act and Article 11 of the Addenda of the Fisheries Act are unconstitutional

Article 40(1) of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990) provides that a holder of a fishery right for joint fishing shall not refuse the entry of a person engaged in fishing in the fishing area by its previous practice, and Article 43 of the former Public Waters Reclamation Act provides that a person who obtained a fishery license under Article 24(1) of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990) shall register the fishery right and the matters relating to the establishment, preservation, transfer, extinguishment, restriction on disposition, or restriction on fishery with the aim thereof in the original register of fishery rights. However, the former Public Waters Reclamation Act (amended by Act No. 4252 of Aug. 1, 1990) provides that a person who obtained a fishery license under Article 24(1) of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 190) shall be entitled to compensation under Article 40(1) of the former Public Waters Reclamation Act.

However, as seen earlier by the amendment of the Fisheries Act on August 1, 1990, Article 40 was amended, and Article 2 subparagraph 7 of the former Fisheries Act provides for the definition of a fishery holder and a fishery holder under Article 11 of the Addenda as a transitional measure against a fishery holder, and Article 81 of the Addenda and Articles 61 and 62 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 1308 of Feb. 18, 191) provide for the compensation for losses to a fishery operator under Article 81 and Article 62 of the former Enforcement Decree of the Fisheries Act (amended by Presidential Decree No. 1308 of Feb. 18, 1991). Such amendment is not clearly clear in the language and text of the former Fisheries Act, thereby preventing confusion in interpretation and clarifying the criteria for compensation. Accordingly, it cannot be seen that any restriction on the status of a fishery holder under the provisions of the former Fisheries Act may not be accepted in cases where the fundamental right of property under Article 2 subparagraph 7 of the Fisheries Act and Article 13 of the Constitution cannot be accepted.

3. As to the misapprehension of legal principles as to the lawsuit claiming compensation for losses

According to Article 16 of the Public Waters Reclamation Act, a person who has obtained a license for reclamation of public waters in which a person has a right shall compensate for losses or install facilities to prevent such losses pursuant to the Presidential Decree, and shall consult with the person entitled to compensation in advance about such compensation, and if such consultation is not reached or it is impossible to reach an agreement, an application for adjudication may be filed with the land expropriation committee under the Presidential Decree. According to Article 26 of the Enforcement Decree of the same Act, an application for adjudication under Article 16 of the same Act shall be filed with the Central Land Expropriation Committee or the local Land Expropriation Committee in accordance with Article 35 of the Land Expropriation Act, so compensation for losses under Article 16 of the Public Waters Reclamation Act shall be filed by means of administrative litigation against the land expropriation committee after the adjudication of the land expropriation committee in case where an agreement is not reached

In the same purport, the court below's dismissal of the conjunctive claim in this case, which sought the compensation for losses under Article 16 of the Public Waters Reclamation Act as civil lawsuit, is deemed legitimate. There is no error of law by misapprehending the legal principles on the claim for compensation for losses under the Public Waters Reclamation Act, as alleged in the grounds of appeal.

4. Therefore, the appeal shall be dismissed and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeong Jong-ho (Presiding Justice)