A. The meaning of "use of business" under Article 16 (4) of the Enforcement Decree of the Fisheries Cooperatives Act

(b) Whether the “use of business” under Article 16(4) of the Enforcement Decree of the Fisheries Cooperatives Act can be deemed as “use of business” where a fishing village fraternity allows a person other than its members to exercise the fishery right under the name of the fishing village fraternity and receive the payment thereof;

(c) Whether a person who is not a member of a fishing village fraternity has a fishing village fraternity exercise the fishery right in the name of the fishing village fraternity and collect the price therefor in the same manner as the business of the fishing village fraternity is used, as prescribed by the articles of association;

(d) Validity of the fishing village fraternity management covenant that permits persons other than members of the fraternity to exercise the fishery right, or to conduct fishery activities within the fish farm, and whether the exercise of the fishery right or the contract is legitimate for a fishing ground;

A. The term “use of business” under Article 16(4) of the Enforcement Decree of the Fisheries Cooperatives Act, which can be allowed to a person who is not a member of a fishing village fraternity, means that a person who is not a member of the fishing village fraternity should use the business or facilities within the scope that does not interfere with the use of the facilities under the premise that the fishing village fraternity is an operator of the business in question, and further, it shall not be deemed that a person who is not a member of the fishing village fraternity is an operator of the business in question.

B. The agreement that a fishing village fraternity has a person who is not a member of the fishing village fraternity exercise part of the fishery right acquired in the name of the member of the fishing village fraternity and is paid a certain rent is the substance of the lease of the fishery right. Such a lease of the fishery right refers to the lessee’s exercise of the fishery right according to the lessee’s intention and the profits accruing from the operation of the fishery are attributed to all the lessee except for the rent that is paid to the fishery right holder. Therefore, it is difficult to view it as the “use of business” as permitted under Article 16(4) of the Enforcement Decree of the Fisheries Cooperatives Act.

C. The purport of the Fisheries Act prohibiting the lease of a fishing right is that the Fisheries Act maintains the foundation of the fishery license system established under the purpose of enabling a person who intends to self-employed to run a fishing business by dividing and diverting the relevant water surface and protecting the benefit therefrom from a third party, and also allows a person who does not exercise his/her fishery right to use a fishing ground by allowing a person who is not a member of a fishing village fraternity to exercise the fishery right in the name of the fishing village fraternity and collect the fees therefor in accordance with the articles of association, such as allowing a person who is not a member of a fishing village fraternity to use the business of the fishing village fraternity and by allowing a person who is not a member of the fishing village fraternity to exercise the fishery right in the name of the fishing village fraternity in accordance with the same manner as allowing a person to use the business of the fishing village fraternity, which is unreasonable.

D. Comprehensively taking account of the provisions of Articles 37(1), 38, and 40(1) of the Fisheries Act, and Article 7(1)1 and (2) of the Enforcement Decree of the Fisheries Cooperatives Act, a fishery right owned by a fishing village fraternity may be exercised by its members. Any person who is not a member of the fishing village fraternity may enter a fishing village fraternity only when he is a fishery holder under Article 2 subparag. 7 of the same Act or a quasi-member under Article 7(1)1 of the Enforcement Decree of the Fisheries Cooperatives Act. The fishing village fraternity's management rules provide that a person who exercises a fishery right or is not a member of the fishing village fraternity may enter a fishing village fraternity within the fishing ground of the joint fishing right, such as the priority in exercising the fishery right, the method and time of exercising the fishery right, fishing time, fishing fees, and other matters necessary for managing the fishing ground, and thus, a person who has a fishery right or a fishery right under the Fisheries Cooperatives Act may not be deemed to have been jointly permitted by the majority of the persons who jointly engaged in catching and gathering the fishery right within the fishing ground registry.

A.B. Article 16(4)(c) of the former Enforcement Decree of the Fisheries Cooperatives Act (amended by Presidential Decree No. 14676, Jun. 22, 1995); Articles 33 and 95 subparag. 5(d) of the Fisheries Act; Articles 2 subparag. 7, 37(1), 38, and 40 of the Fisheries Act; Articles 7(1)2 and 7(2) of the former Enforcement Decree of the Fisheries Cooperatives Act

D. Supreme Court Decision 94Da55323 delivered on September 15, 1995 (Gong1995Ha, 3380)

A

A co-inspector;

Gwangju District Court Decision 93No1299 delivered on August 12, 1994

The judgment of the court below is reversed.

The case shall be remanded to the Panel Division of the Gwangju District Court.

The grounds of appeal are examined.

1. The summary of the facts charged in the instant case is that the Defendant entered into a lease agreement with Nonindicted Party C, a fishing village fraternity head in the office of the Jindo-gun, Jindo-do, Jindo-do, Jindo-do, Jindo-do, Jindo-do, on July 13:00, 1992, concerning a right of neglect on the sea of 6,700 meters belonging to the fishery right of the said fishing village fraternity, which belongs to the said fishing village fraternity, for the purpose of lease of the fishery right.

According to the reasoning of the judgment below, according to the provisions of Articles 33, 37 (1), 38, and Article 16 (1), (4), and (5) of the Enforcement Decree of the Fisheries Cooperatives Act, fishery rights acquired by the fishing village fraternity may be exercised by its members under the conditions as prescribed by the fishing ground management rules established by the competent authorities, but shall not be leased to any other person: Provided, That it shall be allowed to use part of the fishing village fraternity to the extent that it does not interfere with the interests of the pertinent fishing village fraternity members, and it shall be deemed as identical to the use of the pertinent fishing village fraternity members, and it shall not be deemed as lease. According to the premise that the agreement was concluded between the Defendant and the above 139 residents living in Jindo-gun-gun-gun for 10 years on the grounds that the agreement was concluded between the Defendant and the above 20-year fishing village fraternity members on the grounds that the agreement was concluded with the above 10-year fishing village fraternity members for 6,700 meters away from the above 9-year fishing village fraternity.

2. However, Article 16 (1) of the Enforcement Decree of the Fisheries Cooperatives Act provides that "acquisition of fishery right and operation of fishery business" is one of the various businesses that the fishing village fraternity can carry out, and Article 16 (4) of the same Act provides that a person who is not a member of the fishing village fraternity may use part of the business of the fishing village fraternity pursuant to the articles of association, but does not specifically exclude the case of Article 16 (1) 2 of the above Enforcement Decree. However, even under Article 16 (4) of the above Enforcement Decree of the Fisheries Cooperatives Act, a fishing village fraternity may allow a person who is not a member of the fishing village fraternity to use part of its business only if the articles of association provide that a person who is not a member of the fishing village fraternity can use or exercise the fishery right acquired by the fishing village fraternity in the case of B of this case. The "use of business" of Article 16 (4) of the above Enforcement Decree, which is permitted to a person who is not a member of the fishing village fraternity, is not a member of the fishing village fraternity, but a member of the business.

In the case of this case, the agreement that the fishing village fraternity allows the defendant, not a member of the fishing village fraternity, to exercise part of the fishery right acquired in the name of the fishing village fraternity and receive a certain rent in return, does not mean that the lease of the fishery right has the substance of the lease of the fishery right. In such a case, the lease of the fishery right brings about the change of the main body of operation in that the interests arising from the exercise of the fishery right according to the lessee's intention and the operation of the fishery belong to all the lessee except for the interests paid to the fishery right holder on a rent basis. Therefore, it is difficult to view it as the "use of the business" as permitted under Article 16 (4) of the Enforcement Decree

The purpose of the Fisheries Act prohibiting the lease of a fishing right is to maintain the foundation of a fishing license system established under the Fisheries Act for the purpose of enabling a person who is willing to own the fishery to operate the fishery by dividing and diverting the relevant waters and by protecting his interests from a third party, and to prohibit a person who does not exercise his/her fishery right to use the so-called undeveloped fishing ground and allowing a person who is not a member of a fishing village fraternity to exercise his/her fishery right and collect the fees therefor in accordance with the articles of association, such as allowing a person who is not a member of a fishing village fraternity to use the business of the fishing village fraternity, as determined by the judgment of the court below, would be to widely allow the lease of the fishery right under the name of the fishing village fraternity, and this would be unreasonable, which would result in impairing the fundamental purpose of the Fisheries Act prohibiting the lease of the fishery right.

Meanwhile, according to the records, the above fishery right of a fishing village fraternity shall be exercised by its members within the area adjacent to the fishing ground under Article 3. Article 4 of the same Act provides that a fishing village fraternity may enter into an agreement on the exercise of fishery right with a person who intends to exercise the fishery right of the fishing village fraternity for a period of not less than one year but not more than three years from the date of conclusion of the agreement. However, considering the above provisions of Articles 37(1), 38, and 40(1) of the Fisheries Act, and Article 7(1)1 and (2) of the Enforcement Decree of the Fisheries Cooperatives Act, the fishery right of a fishing village fraternity may be jointly determined by its members within the area where the fishery right of the fishing village fraternity is jointly owned by its members within the area where the fishery right of the fishery ground is jointly owned by its members, and the fishery right of the fishery village fraternity may not be jointly owned by its members within the area where the fishery right of the fishery ground under Article 2 subparag. 7 of the same Act is jointly owned by its members.

Nevertheless, it is clear that the court below's decision not guilty of the facts charged of this case on the grounds as stated in its reasoning has committed a misunderstanding of the legal principles as seen above, and it has affected the conclusion of the judgment. The part pointing this out in the grounds of appeal is with merit.

3. Therefore, the judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition with the assent of all participating Justices.

Justices Park Jong-chul (Presiding Justice)