[1] In a case where a resolution by the general meeting of fishing village fraternity on the distribution of compensation for losses due to the termination of a fishery right is remarkably unfair, the validity of such resolution (negative)

[2] The standard for determining whether a resolution by the general meeting of a fishing village fraternity on the distribution of compensation for losses due to the termination of a fishery right is obviously unfair and invalid

[1] The fishery right acquired by a non-corporate fishing village fraternity is jointly owned by the fishing village fraternity (Article 15(4) of the Fisheries Act), and compensation for damages due to the extinguishment of the fishery right also belongs to the collective ownership of the fishing village fraternity. Thus, the disposition of compensation for damages under collective ownership, in principle, shall be decided by the resolution of the general meeting of the members of the fishing village fraternity (Article 10(1)7 of the Enforcement Decree of the Fisheries Cooperatives Act, Article 33(1)7 of the articles of association of the fishing village fraternity), but compensation for damages due to the termination of the fishery right, shall be fairly and appropriately distributed to the members of the fishing village fraternity who suffered losses due to the termination of the fishery right, because the nature of the surplus of the fishing village fraternity differs from the surplus of the fishing village fraternity, and therefore the contents of the resolution of the general meeting of the fishing village fraternity concerning the distribution of compensation for damages due to the termination of the fishery right, in light of the extent of damages caused by each member of the fishing village fraternity, the

[2] In a case where there is a resolution that only distributes compensation for loss due to the termination of a fishery right to a person who owns the fishery right and does not distribute it to the person who operates the fishery right at all, determination of whether the resolution is considerably unfair and invalid, the practice and actual circumstances of the exercise of the fishery right within the fishing village fraternity shall be the most important factor. Other factors such as the degree of competition to become the holder of the fishery right, the percentage of competition to become the holder of the fishery right among the members of the fishing village fraternity, the reason why the holder of the fishery right was not the holder of the fishery right, the attitude of the persons who operated the fishery right to become the holder of the fishery right on the compensation resolution, the attitude of the persons

[1] Article 276(1) of the Civil Act, Article 15(4) of the Fisheries Act, Article 10(1) of the Enforcement Decree of the Fisheries Cooperatives Act / [2] Articles 104 and 276(1) of the Civil Act, Articles 15(4) and 37 of the Fisheries Act, Article 10(1) of the Enforcement Decree of the Fisheries Cooperatives Act

[1] Supreme Court Decision 92Da534 delivered on July 14, 1992 (Gong1992, 2392), Supreme Court Decision 94Da31020 delivered on August 22, 1995 (Gong1995Ha, 3233), Supreme Court Decision 95Da57159 delivered on December 10, 1996 (Gong197Sang, 302), Supreme Court Decision 97Da21277 delivered on October 14, 1997 (Gong197Ha, 3458)

Plaintiff (Appointed Party) 1 and one other (Attorneys Han Man-chul et al., Counsel for the plaintiff-appellant)

Cro fishing village fraternity

Daejeon High Court Decision 96Na35 delivered on May 27, 1997

The judgment of the court below is reversed and the case is remanded to Daejeon High Court.

The grounds of appeal by the plaintiffs' attorneys are examined together.

1. The lower court determined that: (a) Defendant fishing village fraternity was a non-corporate fishing village fraternity consisting of 264 members residing in △△△△, △△△, and △△△ Province; (b) Defendant’s 10,230,74,00 won in total as compensation for the said seven-year fishing village fraternity’s exercise of fishing right by taking advantage of the following facts: (c) Defendant’s 10,000 fishing village fraternity’s exercise of fishing right to the above 19-year fishing village fraternity’s exercise of fishing right; and (d) Defendant’s 7-year distribution of the above fishing village fraternity’s exercise of fishing right by holding an extraordinary general meeting on September 24, 193; and (e) Defendant’s 7-year distribution of the above fishing village fraternity’s exercise of fishing right to the majority of the members of the 19-year fishing village fraternity’s exercise of fishing right; (e) Defendant’s distribution of the above 7-year fishing village fraternity’s distribution of the fishery right to the above 97-year’s distribution.

2. A. The fishery right acquired by a non-corporate fishing village fraternity is jointly owned by the fishing village fraternity (Article 15(4) of the Fisheries Act), and the compensation for damages due to the extinguishment of the fishery right also belongs to the collective ownership of the fishing village fraternity. Thus, the disposition of compensation for damages under the collective ownership should, in principle, be decided by the resolution of the general meeting of the members of the fishing village fraternity (Article 10(1)7 of the Enforcement Decree of the Fisheries Cooperatives Act and Article 33(1)7 of the Articles of incorporation of the defendant), but compensation for damages due to the termination of the fishery right should be fairly and appropriately distributed to the members of the fishing village fraternity who suffered losses due to the extinguishment of the fishery right, because the nature of the surplus of the fishing village fraternity differs from the surplus of the fishing village fraternity, so the resolution of the general meeting of members of the fishing village fraternity concerning the distribution of compensation for damages due to the termination of the fishery right shall be null and void if it is remarkably unfair in light of the extent of damages caused by each member's exercise of the fishery right, dependence, dependence, and other facilities destroyed.

However, Article 37(1) of the Regulations on the Management of Fishing Villages (amended by Ordinance of the Ministry of Agriculture and Forestry No. 1075, May 4, 191; hereinafter the same shall apply) provides that the order of priority for the exercise of fishing rights between members of fishing village fraternities was set, but only those who have the top priority for the exercise of fishing rights have the right to enter into a contract for the exercise of fishing rights on a preferential basis, and thus, the members of fishing village fraternities are entitled to enter into a contract for the exercise of fishing rights at the same time with the members of fishing village fraternities other than the top priority (see Supreme Court Decision 95Da2058, Jun. 13, 1997). In particular, Article 37(5) of the Regulations on the Management of Fishing Villages provides that if it is deemed necessary for the exercise of fishing rights by many members of fishing village fraternities to give them an opportunity to participate in such fishing right, the number of fishing village fraternities's exercise of fishing rights or the total period of exercise of fishing rights shall be limited to those who actually exercise fishing rights.

B. According to the records, the defendant concluded a contract to exercise the fishery right on a one-year basis. Among the 264 members of the defendant fishing village fraternity, a large number of members of the fishing village fraternity residing in the fishing village fraternity who actually participated in the fishing village fraternity of this case, but only all 56 members of the fishing village fraternity in charge of the defendant fishing village fraternity and some members of △△-ri did not exercise the fishery right. In particular, in a case where the previous fishing village fraternity is required to select a new holder of the fishery right by giving up order of priority in exercising the fishery right, the defendant did not enter into a contract to exercise the fishery right with 18 members of the fishing village fraternity, and the plaintiff et al. wanting to exercise the fishery right on the ground that the above 6th members of the fishing village fraternity were excluded from the exercise of the fishery right, and the above 7th members of the fishing village fraternity who did not exercise the fishery right on the ground that they were entitled to exercise the fishery right on the ground that they did not exercise the fishery right on the above 6th members of the fishing village fraternity.

C. Although Defendant fishing village fraternity lost a part of the fishing right due to the 1981 bank construction and distributed compensation for losses to the actual holder of the fishing right, according to the records, the contents of the fishing right extinguished at the time and the actual condition of the exercise of the fishing right do not appear properly. Thus, it cannot be deemed fair to distribute only the holder of the fishing right at once on the ground of a distribution case in 12 years prior to the presumption that the main type of fishery business or the actual condition of the exercise of the fishing right was different from the present. Meanwhile, even though Defendant fishing village fraternity received compensation as the holder of the fishery right who collected fish and so forth, the above compensation was not paid to the Defendant, but directly paid compensation from the business operator by the Plaintiff, etc., the fact that the Plaintiff, etc. received a little amount of compensation as the reported fishery business operator cannot affect the judgment on the fairness of distribution between the members of fishing village fraternity due to the Defendant’s loss of the fishery right.

D. Thus, although the resolution of the defendant general meeting on the distribution of the compensation of this case is to be null and void, the court below judged that it is valid only for the reasons as stated in the judgment below. The court below erred in the misapprehension of legal principles on the distribution of compensation for losses due to the extinguishment of fishery right, and it is obvious that such illegality affected the judgment. Thus, there is a reason to point

3. Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Final Young-young (Presiding Justice)