[1] Whether a person who obtained a fishery permit after the public notice of permission for reclamation of public waters may be deemed to have suffered special loss due to the implementation of the public waters reclamation project (negative)

[2] Where a person who obtained a fishery permit under the former Fisheries Act takes over a fishing vessel, whether the fishery permit is taken over (negative)

[3] In a case where a farmer engaged in permitted fisheries upon obtaining a fishery permit under the former Fisheries Act suffers damage due to the implementation of a reclamation project of public waters, whether the farmer has the right to claim compensation for losses (affirmative)

[4] In a case where an operator of a reclamation project of public waters performed construction without performing the duty of compensation for losses and practically and practically infringed on permitted fishermen, whether such act constitutes tort (affirmative), and the scope of compensation for damages (=amount equivalent to compensation for losses)

[5] The meaning of "date when he becomes aware of the damage and the perpetrator" under Article 766 (1) of the Civil Code

[1] If a reclamation license for a certain public water surface is granted and its public notice is made, the fishery permit is already executed and the restriction on the fishery permit is determined objectively and objectively, and it cannot be deemed that the fishery business operator suffers special losses due to the implementation of the reclamation project of public water surface.

[2] According to the provisions of Articles 12(1) and 19 of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990), a person who intends to engage in permitted fisheries shall obtain permission from the Governor for each fishing vessel or fishing gear, and in the case where a person other than a person who has obtained fishery permission actually controls the operation of the pertinent fishery business without any provision on transfer or acquisition of fishery permission, a person who has obtained fishery permission may revoke the permission. In light of the above, a person who intends to engage in permitted fisheries can not acquire a fishing vessel from a person who has obtained fishery permission along with the fishery permission, but engage in permitted fisheries only when a transferee newly obtains a fishery permission

[3] Although the fishery permit generally prohibits a certain kind of fishery business, which is acquired by the fishery business license, is different from the fishery right acquired by the fishery business license, in certain cases from the fishery right acquired by the fishery business license. However, if the fishery business permit holder obtains property benefits by operating the fishery business in accordance with the permit, the status of the fishery business permit holder is worth being protected as property rights, and there is no provision to compensate for the cancellation, restriction, suspension, etc. of the fishery business until the Fisheries Act amended on August 1, 1990, but since the amendment of the Enforcement Rule of the Public Use and Compensation Act of April 25, 198, the regulation on the assessment of losses for the abolition, suspension, or damage of the fishery business under Article 25-2 was established, and the expropriation, use, or restriction of property rights due to public necessity and compensation therefor should be paid by the Act, but the aforementioned provision on compensation for losses suffered by the fishery business operator under Article 23(3) of the Constitution or the former Enforcement Rule of the Public Waters Reclamation Act of Korea (amended by Act No. 19658, Feb. 19, 19, 1999).

[4] When a project operator, who is obligated to compensate fishermen engaged in permitted fisheries within a public waters reclamation project zone with legitimate fishery permission, does not perform the duty of compensation for losses, thereby causing actual and realistic infringement of the reclamation of public waters, it constitutes a tort. In such cases, the damage suffered by permitted fishermen is equivalent to the amount of compensation for losses.

[5] The "date of knowing the damage and the identity of the perpetrator" under Article 766 (1) of the Civil Code, which is the starting point of the short-term extinctive prescription of a claim for damages caused by a tort, should be known to the fact of the occurrence of the damage and the identity of the tortfeasor, and the harmful act should be known to the effect that the damage can be claimed as a tort. In this case, in order to find the existence of the damage known, even if it is not necessary to have specific knowledge of the amount and degree of the damage, the

[1] Article 16 (see current Article 20) of the former Public Waters Reclamation Act (amended by Act No. 5911 of Feb. 8, 1999) / [2] Article 12 (1) (see current Article 41 (1) and (2)), Article 19 (see current Article 32, Article 35 subparagraph 6, and Article 45) of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990) / [3] Article 23 (3) of the Constitution of the Republic of Korea, Article 16 (see current Article 20) of the former Public Waters Reclamation Act (amended by Act No. 5911 of Feb. 8, 199), Article 3 (1) of the Compensation for Loss of Public Waters Reclamation Act, Article 46 (1) of the former Enforcement Rule of the Public Waters Reclamation Act (amended by Act No. 4252 of Oct. 28, 199) / [3] Article 46365 of the Civil Act

[3] Supreme Court Decision 94Da38038 delivered on July 14, 1995 (Gong1995Ha, 2788), Supreme Court Decision 97Da46450 delivered on February 27, 1998 (Gong1998Sang, 891) / [4] Supreme Court Decision 95Da15032, 15049 delivered on April 14, 1998 (Gong1998Sang, 1310), Supreme Court Decision 97Nu3439 delivered on April 23, 199 (Gong199Sang, 1055), Supreme Court Decision 97Da41028 delivered on June 11, 199 (Gong199Ha, 199Ha, 1342 delivered on May 197, 195) 97Da19799 delivered on May 16, 197 (Gong1995Da1979495 delivered on May 197, 1997).

Plaintiff 1 and three others

Plaintiff 5 and eight others (Attorney Park Jong-young, Counsel for the plaintiff-appellant)

Siljin-gun (Law Firm Seosan, Attorneys Kim Jong-tae, Counsel for the defendant-appellant)

Daejeon High Court Decision 96Na5726 delivered on January 22, 1998

All appeals are dismissed. The costs of appeal are assessed against each party.

1. We examine the grounds of appeal by Plaintiffs 1, 2, 3, and 4.

A. On the first and second grounds for appeal

According to the reasoning of the judgment below, the court below acknowledged that the above plaintiffs were engaged in fisheries by obtaining a fishery permit from the Sigjin-gun as shown in the attached Table 1 of the court below, or by taking over another person's vessel which obtained a fishery permit, and determined that, in order for the above plaintiffs to claim damages to the permitted fishery due to the implementation of the reclamation project of public waters of this case, it should be objectively confirmed that the above plaintiffs were engaged in fisheries under the status of lawfully holding a fishery permit at the time when the above reclamation project of public waters was implemented. Meanwhile, even if those who did not obtain a fishery permit by specifying the types of fishery business do not legally permit, and they do not constitute legal interests protected by law even if they are actually engaged in fishery business without the premise of a fishery permit since the fishery permit cannot be transferred to another person due to its nature, and even if the fishery permit of the same kind was obtained by the transferor of the same as that of the previous fishery permit, it should not be deemed that the transferor obtained a new fishery permit by itself, but if the above plaintiffs did not receive the above legal interests of the above fishery permit under the public waters reclamation license of this case.

If a reclamation license for certain public waters is granted and its public notice is made, a fishery permit thereafter is a permit in a state where the implementation of a reclamation project of public waters and the restriction on permitted fishery thereby becomes objectively determined and conclusive, and thus, it cannot be deemed that a permitted fishery business operator suffers special losses due to the implementation of a reclamation project of public waters thereafter. Meanwhile, when comprehensively and comprehensively examining the provisions of Articles 12(1) and 19 of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990), a person who intends to engage in permitted fishery shall obtain a permit from the Do governor for each fishing vessel or fishing gear, and rather, if a person other than a licensed fishery business operator actually controls the operation of the fishery business, the permit may be revoked. In light of the above, the judgment of the court below is justifiable, and there is no error in the misapprehension of legal principles as to the nature of a fishery permit as well as the evaluation of damages arising from the infringement of a vessel's fishery permit.

However, according to the evidence No. 33-2 of the judgment below, although the plaintiff 4 obtained the permit for coastal fishing on August 11, 1987 and No. 39 of the permit for coastal fishing on August 11, 1987, in addition to the permit for fishery listed in the annexed Table No. 1 of the judgment of the court below, it was erroneous in the court below, but the above permit for coastal fishing was made only after the above permit for fishery was granted after the above permit for reclamation of public waters, so it is not likely to affect the conclusion of the judgment, and there is no error of law

This part of the grounds of appeal cannot be accepted.

B. On the third ground for appeal

Although examining the reasoning of the judgment below in comparison with records, it is impossible to find out the illegality of mistake of facts as alleged in the grounds of appeal. Meanwhile, the court below rejected the claim on the grounds that, prior to determining as to the fishery permit attached to a sub-subsidiary that is unable to operate within a zone for a tiny reclamation project, the case where a fishery permit was obtained after the date of the public waters reclamation license in this case was objectively confirmed and thus it cannot be deemed that the fishery permit was particularly damaged because it was objectively confirmed that the implementation of the public waters reclamation project in this case became final and conclusive. As seen above, the judgment of the court below is just, and it is nothing more than an additional judgment, and in light of related Acts and subordinate statutes and the records, the above sub-subsidiary is lawful as a partial restriction of the fishery permit, and therefore, the court below did not err by misapprehending the nature of sub-subsidiary and legal principles of compensation for damages as alleged in the grounds of appeal.

This part of the grounds of appeal cannot be accepted.

2. We examine the defendant's grounds of appeal.

A. On the first ground for appeal

A fishery permit is a different nature from the fishery right acquired by a fishery license because it generally prohibits a certain kind of fishery business, but cancels it in certain cases. However, if a person who obtained a fishery permit obtains the pecuniary profit by running the relevant fishery business in accordance with the permit, the status of a person who obtained a fishery permit is worth being protected as a property right (see Supreme Court Decision 97Da46450, Feb. 27, 1998).

In addition, even though the Fisheries Act did not have a provision that compensates the cancellation, restriction, or suspension of fishery permits until before the amendment of the Fisheries Act until August 1, 1990, if the Enforcement Rule of the Public Waters Reclamation Act was amended on April 25, 198, which was before the commencement of the reclamation of the public waters in this case, the provision on the assessment of losses due to the abolition, suspension, or damage of the permitted fishery business was prepared under Article 25-2, and the expropriation, use, or restriction of property rights due to public necessity and compensation therefor should be made under the Act, and the compensation shall be made under Article 23(3) of the Constitution, Article 16 of the Public Waters Reclamation Act, Article 3(1) of the Public Waters Reclamation Act, which stipulates the compensation for losses suffered by the owners of land, etc. due to the acquisition or use of land, etc. for public works, etc. for which the project implementer should compensate for such losses, by applying the above provision to the implementer of the public waters reclamation project (see the above Article 3(1) of the Public Waters Act).

Meanwhile, if a project implementer, who is obligated to compensate for losses to fishermen engaged in permitted fisheries within a public waters reclamation project zone with legitimate fishery permission, does not perform the duty to compensate for losses and thereby actually and practically infringed upon the reclamation of public waters, it constitutes a tort. In such cases, the damages suffered by permitted fishermen are equivalent to the amount of compensation for losses (see Supreme Court Decision 95Da15032, 15049, Apr. 14, 1998).

According to the facts duly admitted by the court below, the plaintiffs 5, 6, 7, 8, 9, 10, 11, 12, and 13 were engaged in the fishery in the sea area including the public water reclamation project district in this case after obtaining a fishery permit from the head of Sigjin-gun prior to the date of the public water reclamation license of this case. The defendant started the public water reclamation project of this case without obtaining consent from the above plaintiffs or conducting compensation for losses, and the execution of the construction has suffered damage that actually was impossible to conduct the fishery in the public water reclamation project district of this case and its neighboring sea area, and such damage is deemed to constitute a substantial and realistic infringement, and therefore the above actions by the defendant are deemed to constitute a tort.

On the other hand, even upon examining the reasoning of the judgment below, the court below is clear that the above plaintiffs did not consider the purport of the provision of Article 16 of the Public Waters Reclamation Act as the "person who has the right to receive compensation for losses" under Articles 6 and 17 of the same Act, in light of the relevant provisions, on the premise that the above plaintiffs have the right to receive compensation for losses.

However, the court below recognized that the above plaintiffs have the right to claim compensation for damages by applying mutatis mutandis Article 81 (1) 1 of the Fisheries Act, in which the compensation provision on cancellation, restriction, or suspension of permitted fisheries was enacted only after the amendment was made on August 1, 1990 (amended by Presidential Decree No. 1308 of Feb. 18, 1991). Furthermore, the court below calculated the amount of damages by applying mutatis mutandis Article 62 (1) 2 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 15241 of Dec. 31, 1996), which is based on the above provision of the same Act (amended by Presidential Decree No. 15241 of Dec. 31, 1996), since the above provision of the above Act was established after the commencement of the maritime construction for the implementation of the public waters reclamation project in this case, it could not be the grounds for the above plaintiffs' damages compensation for violation of permitted fisheries. However, as seen earlier, the court below's decision is erroneous by applying mutatis mutandis Article 25-2 of the former Enforcement Rule.

After all, although the judgment of the court below did not contain any defects in its reasoning, it is just in its conclusion, and there is no violation of law which affected the conclusion of the judgment by misunderstanding the legal principles on the illegality, which is the element for establishing damages.

This part of the grounds of appeal cannot be accepted.

B. On the second ground for appeal

The "date when the injured party becomes aware of the damage and the identity of the perpetrator" under Article 766 (1) of the Civil Act, which is the starting point of the short-term extinctive prescription of the right to claim damages due to an illegal act, shall be the time when the injured party becomes aware of the occurrence of the damage and the identity of the tortfeasor, as well as when the harmful act becomes aware of the fact that the injured party can claim damages due to the illegal act. In this case, even if it is not necessary to make it clear of the amount and degree of the damage in detail, the damages shall be actual and specific (see, e.g., Supreme Court Decisions 96Da36159, Feb. 14, 1997; 96Da15176, Dec. 11, 19

According to the reasoning of the judgment below, the court below rejected the defendant's defense of prescription on the ground that damage to the permitted fishery of this case has been continuously and accumulated over a long-term period, and it is difficult to view that the damage to the permitted fishery of this case has been actually determined at the time when the defendant commenced the reclamation of public waters of this case, or that the above plaintiffs have clearly recognized the scope and details of the damage, and that the damage has become final and conclusive at least on December 14, 191 after the suspension construction of a tide embankment was completed, and that the above plaintiffs had difficulty in recognizing damage to the permitted fishery of this case in a uniform manner until the completion of the construction work. Therefore, the judgment of the court below is just, and there is no error of law by misapprehending the legal principles as to the extinctive prescription, as alleged in the ground of appeal.

This part of the grounds of appeal cannot be accepted.

3. Therefore, all appeals by Plaintiffs 1, 2, 3, and 4 and the Defendant’s appeals are dismissed, and the costs of appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jack-dam (Presiding Justice)