[1] Whether the establishment of a customary fishing right under Article 40 (1) of the former Fisheries Act requires a report on fishery business or a registration in the original register of fishery rights (negative)

[2] The target fishery (=joint fishery) where the customary fishery right under Article 40(1) of the former Fisheries Act can be established and its form

[3] Whether the customary fishing right under Article 40 (1) of the former Fisheries Act can be established with respect to the fishery of collecting seaweeds attached to the facilities of the fish farming (negative)

[4] The case holding that the whole annual profit amount of the virtual fishery from the virtual wave can not be used as the basis for calculating the amount of compensation for practice fishery damage, on the grounds that there is no room for fishery right to practice in collecting crys attached to the facilities established by the fishing village fraternity for the fishery business

[1] Fishing practice under Article 40 (1) of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990) refers to a fishing ground's act of gathering or gathering marine animals and plants continuously from a fishing ground for a long time before the establishment of a joint fishing right to a certain fishing ground without a license to the majority of the people. Thus, the requirements for registration of a fishing report or a fishing right register are not required.

[2] The provisions of Article 40 (1) of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990) stipulates that a person who has engaged in catching or gathering marine animals and plants for a long time on the public waters in question shall continue to use certain public waters and have been engaged in catching or gathering marine animals and plants for a long time without a license. Since the public waters in question are established after the establishment of a joint fishery right, the fishery right according to the practice under Article 8 (1) of the same Act can be established for those who have engaged in the joint fishery under Article 8 (1) of the same Act. Since the joint fishery under Article 8 (1) of the same Act is often common to reported fishery business under Article 22 (1) of the same Act in the scope of fishing implements used or marine animals and plants subject to catching or gathering marine animals and plants, it can be seen that the actual reported fishery business and its form are similar.

[3] The practice fishery right under the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990) is not likely to be established for the fishery of artificially propagating marine animals and plants, such as shellfishes, seaweeds, etc. by dividing a certain area of waters by using the floor of the waters or other facilities. Since the right to engage in the fishery cannot be established by the practice of the fishery of fish, there is no room to establish a fishery practice of collecting seaweeds attached to the relevant facilities, as long as the right to engage in the fishery cannot be established by the practice of the fishery of fish.

[4] The case holding that with respect to the fishery business collecting virtual waves attached to the facilities established by the fishing village fraternity for the cultivation of the Kim and the past, all the annual revenues of the previous fishery business from the previous fishery business cannot be used as the basis for calculating the amount of compensation for practice fishery damage, on the grounds that there is no room for establishment of the fishery right for practice

[1] Article 40 (1) of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990) / [2] Articles 8 (1), 22 (1), and 40 (1) of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990) / [3] Articles 8 (1) and 40 (1) of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990) / [4] Articles 8 (1) and 40 (1) of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990)

[1] [2] Supreme Court Decision 97Da41028 delivered on June 11, 1999 (Gong199Ha, 1342) / [1/3] Supreme Court Decision 98Da8790 delivered on September 3, 199 (Gong199Ha, 2005) Supreme Court Decision 98Da12430 delivered on October 8, 199 (Gong199Ha, 2282) / [1] Supreme Court Decision 69Da173 delivered on March 31, 1969 (No 17-1, 408), Supreme Court Decision 93Da45721 delivered on March 25, 199 (Gong194, 194, 1332) / [195Da19849 delivered on May 31, 195] Supreme Court Decision 93Da199539 delivered on May 31, 1995

Chang-si Fisheries Cooperatives (Law Firm Gangseo-dong General Law Office, Attorneys Gyeong-soo et al., Counsel for the plaintiff-appellant)

Korea Land Corporation and one other (Attorney Jung-jin et al., Counsel for the plaintiff-appellant)

Busan High Court Decision 96Na10881 delivered on April 30, 1998

The part of the judgment below against the Defendants is reversed. The case is remanded to Busan High Court.

The grounds of appeal are examined.

1. As to the ground of appeal No. 1 by Defendant Korea Land Corporation

In order to become a fishery holder under Article 2 subparagraph 7 of the Fisheries Act (amended by Act No. 5131, Dec. 30, 1995; hereinafter referred to as the " Fisheries Act") which was wholly amended by Act No. 4252, Aug. 1, 1990 and enforced February 1, 1991, it is insufficient to recognize that the majority of people have continuously captured and gathered marine animals and plants on a certain public water surface to become a fishery holder under Article 2 subparagraph 7 of the same Act. The fact that the fishery report is made pursuant to Article 44 of the same Act, and the fact that the matters concerning the joint fishery right register should be registered by entering into the fishery right register is pointed out in the grounds of appeal (see Supreme Court Decision 96Da3838, Oct. 10, 1997).

However, according to the reasoning of the judgment below and the records, the final agreement on compensation for fishery damage caused by the instant project implemented by the Defendants was made on March 2, 1992 after the amended Fisheries Act enters into force, and the agreement on compensation was signed and sealed by the parties. However, the delayed agreement is due to the conflict between the parties as to whether the pertinent project without any legal basis for compensation is subject to compensation for damage, and there was no difference from the beginning on whether the pertinent project is subject to compensation for damage caused by lawful fishing and practice fishing. The Defendants expressed the basic policy for compensation within the scope permitted by the current law on July 19, 190. On November 21, 1990, the fact that the agreement between Chang-gun and Chang-gun National Fisheries Cooperatives, including the Plaintiff, and Chang-gun National Fisheries Cooperatives, which signed the agreement on compensation for damage under Article 4(1) of the agreement on compensation for the instant project can be seen as being subject to the agreement on compensation for damage under Article 4(1) of the agreement.

As such, if the defendants clarify the compensation policy under the current law, which means the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990, hereinafter referred to as the "former Fisheries Act") which was enforced on July 19, 190 before the amendment of the Fisheries Act, and have reached an agreement with regard to Article 4(1) of the present agreement, which covers compensation for damages caused by practice in November 21, 1990, before the amendment of the Fisheries Act was made, it is difficult to view that the practice fishing under Article 4(1) of the above agreement referred to in Article 2(7) of the amended Fisheries Act, which was not implemented at the time of the above agreement, referred to in the above agreement as referring to the fishing by a fishing practice conducted by a person under Article 40(1)7 of the former Fisheries Act, and it is bound to mean the "fishing practice under Article 40(1) of the former Fisheries Act".

However, a fishing practice under Article 40(1) of the former Fisheries Act refers to a gathering or gathering of marine animals and plants from a fishing place for a long time before the establishment of a common fishing right to a certain fishing place without a license for the fishery business and leading to the extent that it would be acceptable for the majority of the people (see, e.g., Supreme Court Decisions 69Da173, Mar. 31, 1969; 93Da45701, Mar. 25, 1994; 97Da41028, Jun. 11, 1999); and therefore, the Plaintiff is not entitled to claim compensation for damage to fishery business under the above agreement without a report on fishery business or registration in the fishery right register.

In the same purport, the decision of the court below is justified in holding that the damage to the practice fishery without reporting the fishery business or registration in the fishery right register constitutes the practice fishery damage to be compensated by the Defendants, and there is no error in the misapprehension of legal principles as to the practice fishery business or in the incomplete hearing. The ground of appeal on this point

2. As to the ground of appeal No. 2 by Defendant Korea Land Corporation

Article 40 (1) of the former Fisheries Act provides that "a holder of a fishery right for joint fishing shall not refuse to enter a fishery by its previous practice." Since Article 40 (1) of the same Act provides that "a holder of a fishery right for a long time has continued to use certain public waters and has captured or gathered marine animals or plants for a long time without a license, a person who has been engaged in a fishery business for a long time shall be entitled to continue to engage in the fishery business after the establishment of a joint fishery right for the relevant public waters, the fishery right according to the practice under Article 8 (1) of the same Act can be established for those who have engaged in a joint fishing business under Article 8 (1) of the same Act (see, e.g., Supreme Court Decision 94Da55323, Sept. 15, 1995). Since the scope of the common fishing business under Article 8 (1) of the former Fisheries Act is often common with reported fishery business under Article 22 (1) of the same Act or marine animals or plants subject to capture or gathering, practices are similar in substance and form of reported fishery business.

In the reasoning of the judgment below, the court below expressed that the scope of practice fisheries is included in the case where a person engaged in fisheries falling under the reported fishery business in any narrow range from the scope of practice fisheries is presumed to be established only in the case where a person engaged in a joint fishery business, prior to such judgment, and it seems that the practice fisheries is not merely an expression emphasizing the purport that the practice fisheries is similar to the actual reported fishery business and its form. Therefore, the judgment of the court below is acceptable, and there is no error in the misapprehension of the legal principles as to practice fisheries as otherwise alleged in the ground of appeal. The ground of appeal on this point is

3. As to the ground of appeal No. 3 by Defendant Korea Land Corporation and Defendant Busan Metropolitan City’s ground of appeal

A. According to the reasoning of the judgment below, the court below found that the plaintiff fishing village fraternity continued to collect the crypt from the beginning of the establishment of the fishing village fraternity in the form of the first hand-on fishery, and recognized that the execution of the project in this case was impossible due to the implementation of the project in this case, and ordered the plaintiff fishing village fraternity to pay the amount equivalent to the 3-year amount of the 3-year amount of the 3-year amount of the 3-year amount of the daily amount of the 3-year amount of the 3-year amount of the 3-year amount of the 3-year amount of the 218,718,843 amount of the 3-year amount of the 3-year amount of the 3-year amount of the 3-year amount

B. The fishery right according to the practice of Article 40(1) of the former Fisheries Act can be established for those who have engaged in joint fishing under Article 8(1) of the same Act. Since Article 40(1)4 of the same Act classify the fisheries of catching shellfishess, seaweeds, etc. as Class 1 joint fishing exclusively for certain waters, the practice fishing under Article 40(1) of the same Act can also be established for those who have engaged in joint fishing under Article 8(1) of the same Act.

Article 14-2 (5) of the former Enforcement Decree of the Fisheries Act (amended by Presidential Decree No. 13308 of Feb. 18, 191), which was delegated by Article 14-2 (5) of the former Enforcement Decree of the Fisheries Act, provided the method of gathering marine animals and plants within the fishing zone of Class 1 joint fishing business, the Ministry of Oceans and Fisheries announced on December 5, 1985 (repealed by the Notice of April 24, 1991) No. 85-15 of the former Enforcement Decree of the Fisheries Administration (amended by the Notice of the Ministry of Oceans and Fisheries No. 91-9 of Apr. 24, 1991) permits the Plaintiff to use the above fishing gear to catch marine animals and plants within the fishing zone of Class 1 joint fishing business, not the Plaintiff’s qui to using the power or qui of marine animals and plants, and thus, the Plaintiff’s use of the fishing gear in collecting power or qui to the Plaintiff’s free fishing operation.

In addition, Article 12(1) of the former Fisheries Act provides that sea-water extraction fisheries as a kind of permitted fishery by the Do governor, but Article 14-6(8) of the former Enforcement Decree of the Fisheries Act upon delegation of the above provision limits the sea-water extraction fisheries to the "divers" to the "divers". Thus, it cannot be said that the Plaintiff's sea-water extraction fisheries from the time of the former Fisheries Act was generally prohibited by the Plaintiff's sea-water extraction fisheries from the time of the latter Fisheries Act, and there was no room for the establishment of a fishing practice.

Therefore, among the grounds of appeal on this part, we cannot accept the part that the plaintiff fishing village fraternity did not use a small-sized fishing vessel in collecting the pyropical wave, or that Article 12 (1) of the former Fisheries Act stipulates that the fishery from piracy was a kind of permitted fishery by the Do governor, and that there was no room for the plaintiff fishing village fraternity's practice of fishery from the pyropical fisheries under the former Fisheries Act.

C. However, it is difficult to accept the lower court’s decision, in light of the following points, based on the Plaintiff’s calculation of the total amount of annual income for the fishery from naturally occurring in the city fishing village fraternity based on the report on the investigation of fishery damage by the Busan Fisheries University Research Institute (Secondary).

The practice fishery right under the former Fisheries Act is not likely to be established for the fishery of artificially propagating marine animals and plants, such as shellfishes and seaweeds, by dividing a certain area of waters by using the bottom of the waters or using other facilities (see Supreme Court Decision 94Da55323, Sept. 15, 1995). As long as the right to engage in the fishery cannot be established by the practice of cultivating fisheries, there is no room to establish a fishery practice of gathering seaweeds attached to the relevant facilities on the premise of the fishery.

According to the records, the plaintiff's fishing village fraternity can be found to have cultivated the Gams of this case on a large scale within the fish farm in a line that collects the Gams of this case. While the Gams of this case remains far away from the original place of growth and grow up, it is widely known that the plaintiff's fishing village fraternity is going up with the facilities, such as Gams and gravels, and Gams and Gams, which are used for fish farming, as well as Gams and Gams, etc., which are used for fish farming, the possibility that the plaintiff's fishing village fraternity was also included in the Gams of the Gams which

그런데 만약 원고 어촌계가 자신이 하는 양식어업의 시설물에 붙어 생육하는 가시파래를 채취하기도 하였다면 그 어업은 내만의 뻘 위나 얕은 곳의 저층 가까이에 떠다니거나 조개나 자갈 등의 다른 곳에 붙어 있는 것을 채취하는 어업과는 달리 원고 어촌계의 양식어업이 행하여지고 있는 동안에만 성립할 수 있는 것이므로, 원고 어촌계가 하는 양식어업 자체에 대하여 구 수산업법상의 입어의 관행이 성립될 수 없는 이상 그 양식어업의 시설물에 붙어 생육하는 가시파래를 채취하는 입어의 관행 또한 성립될 여지가 없다고 할 것이다.

Therefore, the court below should not consider the amount of compensation for actual fishery business as the basis for calculating the amount of compensation for actual fishery business, unless there are special circumstances, such as that the plaintiff did not carry the facilities of the fish farming business conducted by the fishing village fraternity at all, and that the plaintiff did not collect them, or that the report on the investigation of fishery damage (the second) conducted by the research institute of the Busan Fisheries Research Institute was made from the facilities of fish farming business, or that the remaining amount was made from the facilities of the fish farming business at the Busan Fisheries Research Institute, or that the annual proceeds of the fish farming as stated in the report on the report on the investigation was made only based on the amount of the fish farming business. Therefore, the court below did not examine such special circumstances and did not err by failing to exhaust all necessary deliberations as to the current status of recovery of the TV wave or by misapprehending the legal principles as to customary fishery business. The part of the grounds of appeal assigning this error is with merit.

4. Therefore, the part of the judgment of the court below against the Defendants 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 by the assent of all participating Justices.

Justices Cho Cho-Un (Presiding Justice)