[1] The meaning of the customary fishing right under the former Fisheries Act and the status of the customary fishing right holder

[2] Whether the registration of the original fishery right register is required for the recognition of the customary fishery right after the enforcement of the former Fisheries Act even in the case of a fishing ground without the original fishery right register (affirmative)

[3] Requirements for establishing a "right (fishing right)" according to the practice of entry into a fishing place under Article 40 of the former Fisheries Act

[4] Whether the establishment of a customary fishing right can be recognized in a case where there is no special restriction on the use of fishing grounds inside and outside the country (negative)

[1] Article 40 (1) of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990; hereinafter referred to as the "former Fisheries Act") provides that "the right pursuant to the practice of entry into a fishing place" refers to the degree that a person who continues to catch or gather marine animals and plants for a long time from a fishing place before the establishment of a joint fishing right to a certain fishing place to the majority of the persons concerned without a license to do so, and thus, the public waters in question can be recognized regardless of whether the joint fishing right is established or not, and it does not require a report on the fishery business or a registration on the original register of fishing right, so if the public waters reclamation right holder suffers damage to the person who has the customary fishing right due to commencement and implementation of construction work without prior compensation or consent, such act constitutes a tort against Article 16 and Article 17 of the former Public Waters Reclamation Act (amended by Act No. 537 of Apr. 10, 197).

[2] In light of all the provisions of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990 and amended by Act No. 5131 of Dec. 30, 1995; hereinafter referred to as the "Revised Fisheries Act") and the former Public Waters Reclamation Act (amended by Act No. 5337 of Apr. 10, 1997), it is insufficient to say that the fact that the fishery right has been continuously captured and gathered in a certain public waters after the enforcement of the amended Fisheries Act is recognized as a right to the fishery in accordance with a certain public waters, such as the previous public waters, and that the fact that the fishery right has already been captured and gathered should be reported in accordance with Article 44 of the amended Fisheries Act and the matters concerning the fishery right register should be registered in accordance with the original fishery right register. Meanwhile, according to the provisions of subparagraphs 6 and 7 of Article 2 of the amended Fisheries Act, it is not clear that the fishery owner is in violation of the previous fishery right's duty to compensate for damages.

[3] The customary fishing right under the former Fisheries Act is acknowledged as a matter of principle by independent household, and a certain period of time shall be recognized as to a person who has been transferred from a branch of sub-branch or out of the branch of sub-branch, and even in this case, it shall be recognized as only for a person who has labor ability and intention to continue such fishery and who has reached the age of 20 to 60.

[4] In light of the fact that the practice of fishing right is a real right that can claim and exercise the joint fishing right against a third party who infringes the right even if the joint fishing right is not established on the public waters in question, and that it is a real right that has the effect of claiming the exclusion of the joint fishing right or claiming compensation for damages therefrom. Thus, it is difficult to recognize that it is a customary fishing right holder who has engaged in the practice of fishing under Article 40 of the former Fisheries Act, on the sole basis of the fact that it has taken and gathered marine animals and plants, such as fishing village and bamboo, inasmuch as it is not recognized that there was no limit domestically and externally as to the use of fishing ground, and that it could be excluded from a third party's fishing activity in the fishing ground.

[1] Article 40 (1) of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990), Article 16 (see current Article 14), and Article 17 (see current Article 20 (1)) of the former Public Waters Reclamation Act (amended by Act No. 5337 of Apr. 10, 1997) / [2] Article 2 subparagraphs 6 and 7, Article 16, and Article 44 of the former Fisheries Act (amended by Act No. 5131 of Dec. 30, 195), Article 11 of the Addenda of the former Public Waters Reclamation Act / [3] Article 40 of the former Fisheries Act (amended by Act No. 4252 of Aug. 10, 1990) / [40 of the former Fisheries Act (amended by Act No. 5131 of Dec. 4, 199)

Supreme Court Decision 96Da3258 delivered on March 28, 1997 (Gong1997Sang, 1199), Supreme Court Decision 98Da12430 delivered on October 8, 199 (Gong1999Ha, 2282), Supreme Court Decision 98Da25979 delivered on November 12, 199 (Gong1999Ha, 2472), Supreme Court Decision 99Da5840, 58457 delivered on December 28, 199 (unpublished) / [2] Supreme Court Decision 96Da3838 delivered on October 10, 199 (Gong197Ha, 3385), Supreme Court Decision 209Da36497 delivered on November 29, 209 (Unpublished 97Da397499 delivered on September 26, 299) / [309Da579497 delivered on September 29, 2997

Supreme Court Decision 201Na14488 delivered on May 1, 201

Korea

Jeonju District Court Decision 95Ga172, 936, 974, 1335, 1342, 96Ga513 delivered on August 22, 1998

1. All appeals by the plaintiffs (appointed parties) are dismissed.

2. The costs of appeal are assessed against the Plaintiff (Appointed Party).

The defendant shall pay to the plaintiffs (appointed parties, hereinafter referred to as the "Plaintiffs") and the designated parties listed in the separate sheet No. 1 the amount in the corresponding claim column of the same list and each of the above amounts in the corresponding claim column of the same list from October 23, 191 to the pronouncement date of the judgment of the court of the first instance, 5% per annum from the next day to the date of the decision of the court of the first instance, 25% per annum from the next day to the date of the full payment, and 25% per annum from the delivery date of the copy of the lawsuit to the date of full payment (the plaintiff has partially modified the claim portion of the claim for delay compensation in the judgment of the court below).

The part of the judgment of the court below against the plaintiffs and the designated parties listed in the annexed Form 1 shall be revoked. The defendant shall pay to the plaintiffs and the aforementioned designated parties the amount stated in the item column of each corresponding appeal in the same list, the amount of five percent per annum from October 23, 1991 to the date the judgment of the court of the party is rendered, and the amount at the rate of 25 percent per annum from the next day to the date of full payment.

1. Basic facts

The following facts are nonexistent between the parties, or there is no dispute between the parties, the evidence listed in paragraph (1) of the attached Table 2, evidence No. 1101 through 10, evidence No. 1102-1 through 67 (each criminal trial record), evidence No. 1110-1, 2 (Notice of Decision and Decision of Compensation), evidence No. 1111-1, 2 (Investigation and Research on Fishery Damage Compensation), evidence No. 1113-1, 2, 3 (Saeman District Comprehensive Data and Saemangeum Development Data), evidence No. 2783-1, 2 (Protocol of Fishery Damage Compensation), Eul's evidence No. 1-2 (Final Public Notice and Public Notice of Action Plan for Saemangeum Land Reclamation Project), evidence No. 2-1, 2, 3 [Public Notice of Decision and Public Notice of Decision of Compensation No. 4] of the original judgment, Public Waters Reclamation Project, Public Notice No. 3 (Public Waters Reclamation Project's Opinion No. 1, Public Notice of Reclamation Plan No.

(a) Details of the implementation of the Saemangeum Reclamation Comprehensive Development Project;

(1) On August 13, 1991, the defendant decided that the Saemangeum Reclamation Comprehensive Development Project mainly for the creation of farmland and the development of water will be carried out as part of the Saemangeum Sea Development Project, and on August 19, 191, the defendant announced the implementation plan of the Saemangeum Reclamation Comprehensive Development Project (hereinafter referred to as the "Shoman Project") under Article 91-23 of the notification of the Minister of Agriculture and Forestry pursuant to Article 94 of the former Rural Community Modernization Promotion Act (repealed by Article 2 of the Addenda to the Farmland Improvement Project Act, Act No. 5077 of December 29, 1995). The main contents are as follows.

(1) Project implementer: Minister of Agriculture and Forestry.

(2) Business purposes: Comprehensive development of reclamation, and development of water resources.

(3) Business area: Gunsan-si (non-gu, ero-do), Dollan-gun (Saeak, dong-gu, dong-si, sagin, sagin, sagin), Kim Jung-gun (e.g. g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g

(4) Business area ( reclaimed area): 40,100 Mountainous (land development 28,30 Mal., 11,800 Mal.)

(5) Outline of the project: 4 meters of a tide embankment of 33km (for Section 1, 4.7km-do 4.7km-do, Namnam-do, 9.9km-do, 3 tools: Sinsido-do, 2.7km-do, and 4 tools: 11.4km-do, Ysido: 11.4km-do, Ysido), 2 drainage gates-do, 13 locations.

(6) Business period: 14 years (for the outer facilities, from 191 to 1998, and internal development: from 199 to 2004).

(2)In accordance with Article 4 of the former Public Waters Reclamation Act (amended by Act No. 5337 of Apr. 10, 1997), the Minister of Agriculture and Forestry, on October 17, 1991, issued a license to reclaim public waters of the 19 Eup/Myeon/Dong (hereinafter referred to as the “instant project zone”) located in the Saemangeum Project, 40,100 square meters at the 19 Eup/Myeon/Dong (hereinafter referred to as the “instant project zone”) and publicly announced on October 22, 1991, which shall be within 14 years from the starting date of the completion date.

(3) The Minister of Agriculture and Forestry had the project implementation period from November 16, 1991 to December 2004 in accordance with the above Saemangeum Project implementation plan, and had the Governor of Jeollabuk-do branch with the approval of the project implementation plan to delegate the construction and construction supervision of the Saemangeum Project to the Rural Development Corporation (the name was changed to the Korea Agricultural and Rural Infrastructure Corporation on January 1, 2000), and publicly announced it as prescribed in Article 91-36 of the Public Notice of the Ministry of Agriculture and Forestry. On November 28, 191, the Minister started the construction of the Saemangeum Disaster Prevention Project first Section of the Saemangeum Project with the common awareness from the Sinan-gun, Seoan-gun, Gunan, Busan-gun, and the construction of the Section 2, 3, and 4 sections around June 10, 192.

(4) Examining the progress of the above tide embankment construction by each of the above sections, the construction was implemented by the Corporation from the commencement of the above construction to the end of 192 part of 1.8km from among the above sections of the Section I (4.7km from the side of the port side). From the beginning of 1993 to the end of 193, the part of 1.7km from among the section I of the Section I of the Section B of the Act (referred to as 1.7km from the side of the port side) (referred to as 9.9km from the south-do), the part of the Section II of the Section B of the Act (referred to as 0.9km from the south-do) and the part of the Section C of the Section C of the Section B of the Act (2.7km from the side of the new City/Do) were not implemented until the end of the Section IV of the Act, and the part of the Section B of the Section B of the Act was not implemented until the end of the Section IV of the Act.

(b) Status of the fishing ground for man-owned fishery;

In the vicinity of the project area of this case, the daily area near the project area of this case has been formed with a wide size of approximately 131,045,000 square meters wide (hereinafter referred to as the "fishing ground of this case"), and there have been natural fish and shellfish living in the project area of this case, including the plaintiffs and the designated parties (hereinafter referred to as the "Plaintiffs"), due to natural fish and shellfish living in the area of this case, such as booms, improvement dogs, bus bars, spawn, and digging, etc., the residents have been gathering natural mountain shellfish shellfishess, such as booms and improvement dogs, using a simple fishing gear in the fishing ground of this case including the plaintiffs and designated parties (hereinafter referred to as "the plaintiffs").

On the other hand, the instant fishing ground is divided into 13 fishing grounds having an area between 1,186,00 square meters and 23,895,000 square meters according to the region. Since there are no special restrictions on fishing activities in each fishing ground, all fishing grounds have been freely selected regardless of village regardless of village. However, under the location conditions of village, the fishing ground used mainly for each village was limited.

C. Plaintiffs’ fishery report

The plaintiffs were residents residing in the project area of this case around October 22, 1991, the date of the public waters reclamation license notice of this case, and the plaintiffs 523 others except for the Appointers Kim Byung-kick-kick-kick-kick-kick-kick-kick-kick-kick-kick-kick-kick-kick-kick-kick-kick-kick-kick-kick-kak-kak-kak-kak-kak-kak-kak-kak-kak-kak-kak-kak-kak-kak-kak-kak-kak-kak-kak-kak-kak-kak-kak-kak-kak-kak-kak-kak-kak-kak-kak-kak-kak-kak-kak-kak-kak-kak-kak-kak-kak-kak-kak-kak-kak-kak-k-k-kak-k.

D. Defendant’s reasons for compensating for losses

(1) In accordance with Article 89 of the Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990, which was amended by Act No. 5131 of Dec. 30, 1995), the Defendant established the Jeollabuk-do Council for Countermeasures against Fisheries comprised of 57 persons, such as the chief of fishing village fraternity, the representatives of fishermen, and university professors, in an area likely to be damaged to present opinions on the determination of the compensation area and the scope thereof, and agreed on the scope of compensation, compensation amount, method of compensation, etc., as of Oct. 22, 1991, the public waters reclamation license notice date of this case, determined to compensate the legitimate right holder or permitted or reported fishermen of the branch line in the project area of this case as of Oct. 22, 1991, the Defendant concluded a research and investigation contract for compensation for fishery damage and Saemangeum Project with the Non-party Military Development Institute and the Korea Marine Research Institute.

(2)The Korea Marine Development Institute established a fisheries damage investigation service between the conclusion of the above service contract and August 1994. Accordingly, the Defendant secured the budget in order from December 1994 and paid compensation. With respect to the first hand hand fishery, compensation was paid to only the person (total 6,671) who made the first hand hand-on fishery report with the operation area in the instant project area prior to the date of the public waters reclamation license notice, and the Plaintiffs refused to pay compensation on the ground that there was no legitimate report on fishery business.

On the other hand, at the time of October 22, 191, 398 fishery licenses (Class 1 fishery business, political net fishery business, joint fishery business, etc.) were established in the name of the fishing village fraternity or individual in the pertinent area with respect to the branch line in the instant business area, but all of the above fishery rights were paid compensation in accordance with the criteria under Article 62 of the Enforcement Decree of the Fisheries Act (amended by Presidential Decree No. 1308, Feb. 18, 1991).

2. The plaintiffs' assertion

The grounds for the claim of this case asserted by the plaintiffs are as follows.

A. The plaintiffs who are residents of the project area of this case have long been living in the fishing area of this case after catching, collecting and maintaining village or bamboo, etc. from the so-called customary fishing right holder under Article 6 subparagraph 2 of the former Public Waters Reclamation Act (amended by Act No. 5337 of Apr. 10, 1997). The defendant is obligated to compensate the plaintiffs for the amount of compensation equivalent to the compensation amount under Article 62 of the Enforcement Decree of the Fisheries Act (amended by Presidential Decree No. 1308 of Feb. 18, 191).

B. The plaintiff had the duty to legally report his/her first hand over fishery within the period stipulated in Article 11 of the Addenda of the Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990) before and after the date of the public water reclamation license of this case (the public water reclamation license of this case) and the public water reclamation license of this case was announced, and the head of the competent Gun within the period stipulated in Article 11 of the Addenda of the Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990), and the defendant was prohibited from issuing the certificate of completion of fishery business covering the branch line within the business area of this case without any legal basis until August 1, 1991, and as a result, the part of the fishing village fraternity and the public official of the Seoan-gun-Gun Office changed the plaintiffs' fishery report of this case, and therefore, the defendant still claimed that the amount of compensation for the above fishery business should be paid to the plaintiffs within 19 years prior to the implementation of the fishery business area of this case 19.

C. According to the results of the service of the Korea Marine Development Institute of the Korea Military University prior to the date of the public waters reclamation license notice, the Defendant is obligated to pay the Plaintiffs the compensation amount for each of the above fishing village fraternities, since the first grandchildren who received the fishery report certificate for the branch lines within the instant business area was set up, and the remainder of the first grandchildren (the first grandchildren who received the fishery report certificate for branch lines outside the instant business area or did not receive the fishery report certificate) left the compensation amount for each branch line of the fishing village fraternity.

3. Determination

(a)decision on claims for damages caused by customary fishing rights infringement;

(1) The parties' assertion

With respect to the plaintiffs' claim for damages equivalent to the compensation for damages caused by the infringement of the customary fishing right on the fishing ground of this case, the defendant asserts that the above plaintiffs' claim is groundless since the fishery right holder did not register it in the fishery right register within 2 years under the Fisheries Act, which was amended by Act No. 4252, Aug. 1, 1990, and enforced from February 1, 1991. Since the plaintiffs did not register it as above, they cannot claim compensation for damages under the premise of the compensation for the fishery right regardless of whether or not the plaintiffs' customary fishing right is recognized. Since the plaintiffs did not do not do so, they did not conduct so-called customary fishing business to collect and sell village or bamboo in the fishing ground of this case at the time of the announcement of the public waters reclamation license of this case.

(2) Relevant laws and regulations and the status of a customary fishing right holder

(A) The Act on the Grounds of Compensation

Article 2 subparagraph 1 of the former Agricultural Community Modernization Promotion Act, which is a basis for the Saemangeum Project, provides that "Land Improvement Project" means the following projects implemented under this Act: (d) of the same Act, and Article 104 of the same Act provides that "The Public Waters Reclamation Act shall apply to the implementation of the project under Article 2 subparagraph 1 (d) of the same Act" (each of the above provisions was deleted by Article 7 (4) of the Addenda to the Rearrangement of Agricultural and Fishing Villages Act (Act No. 4823 of Dec. 22, 1994), and the above former Agricultural Community Modernization Promotion Act or the Rearrangement of Agricultural and Fishing Villages Act shall apply not the former Agricultural Community Modernization Promotion Act, but the same shall apply to compensation for losses caused by reclamation of public waters under the Saemangeum Project (see Supreme Court Decision 96Da32588 of Mar. 28, 1997).

(b)the relevant legal provisions at the time of enforcement of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990; hereinafter referred to as the "former Fisheries Act"), the concept of customary fishing rights and the status of a person who has customary fishing rights;

Article 16 (1) of the former Public Waters Reclamation Act (amended by Act No. 5337 of Apr. 10, 1997) which had been still effective before October 22, 1991, the date of the public waters reclamation license of this case, provides that "any person who has obtained a reclamation license for public waters where he has a right shall compensate for losses or install facilities to prevent such losses under the conditions as prescribed by the Presidential Decree." Article 17 of the same Act provides that "any person who has obtained a reclamation license for public waters where he has a right shall compensate for losses or install facilities under the conditions as prescribed by the Presidential Decree." Article 16 (1) of the same Act provides that "no person who has obtained the reclamation license shall commence construction works until he has suffered losses or facilities under paragraph (1) of the preceding Article: Provided, That the same shall not apply where he obtained the consent of the person who has the right to do so, while Article 6 (1) 2 of the former Public Waters Reclamation Act (amended by Act No. 4252 of Aug. 1, 1990) provides that fishery right holder under Article 16 of the former Fisheries Act. 4.

Article 40(1) of the former Fisheries Act, which has been recognized in accordance with the above various legal provisions, refers to the right according to the practice of entry into a fish farm (see, e.g., Supreme Court Decisions 9Da12430, Oct. 8, 1999; 99Da5840, 58457, Dec. 28, 1999; 98Da25979, Nov. 12, 1999; 2007Da177, Feb. 16, 2007). In addition, if the above practice of fishery is recognized, it constitutes a tort under Article 17 of the former Public Waters Reclamation Act, regardless of whether a joint fishery right has been established or not, it constitutes a tort under Article 40(1) of the former Fisheries Act, which is not a requirement for a report on fishery business or registration in the original register of fishery rights (see, e.g., Supreme Court Decision 98Da25979, Nov. 12, 199).

(C) the amended Fisheries Act and the Public Waters Reclamation Act

그런데 1990. 8. 1. 빕률 제4252호로 전문 개정되어 1991. 2. 1.부터 시행된 수산업법(이하 '개정 수산업법'이라고 한다)은 위 구 수산업법 제40조 소정의 "입어에 관한 관행"에 관한 규정을 두지 않은 채, 제2조 제6호에서 "'어업권'이라 함은 제8조의 규정에 의하여 면허를 받아 어업을 경영할 수 있는 권리를 말한다."라고 규정하고, 제2조 제7호에서 "'입어'라 함은 입어자가 공동어업의 어장에서 수산동식물을 포획·채취하는 것을, '입어자'라 함은 제44조 규정에 의하여 어업의 신고를 한 자로서 공동어업권이 설정되기 전부터 당해 수면에서 계속적으로 수산동식물을 포획·채취하여 온 사실이 대다수 사람들에게 인정되는 자 중 대통령령이 정하는 바에 의하여 어업권원부에 등록된 자를 말한다."라고 규정하고 있으며, 또한 부칙 제11조(입어자에 대한 경과조치)에서 "이 법 시행 당시 종전의 규정에 의하여 입어자로 등록되어 있는 자는 이 법에 의한 입어자로 본다. 이 법 시행 당시 공동어업의 어장 안에서 입어 관행이 있는 것으로 인정되는 자로서 종전 규정에 의하여 어업권원부에 입어자로 등록하지 아니한 자는 이 법 시행일로부터 2년 이내에 어업권원부에 등록을 한 경우에 한하여 입어자로 본다."고 규정하고 있고, 제44조 제1항에서 "제8조(면허어업), 제41조(허가어업) 또는 제42조(시험 또는 교습어업)의 규정에 의한 어업 외의 어업으로서 수산청장이 정하는 어업을 하고자 하는 자는 어선, 어구 또는 시설마다 시장, 군수 또는 자치구의 구청장에게 신고하여야 한다."고 규정하고 있으며, 수산청 1991. 4. 24.자 고시 제91-9호는 신고어업의 종류와 조업방법을 6가지로 정하고 있는데, 그 중 하나는 맨손어업으로서 그 조업방법은 손으로 낫, 호미, 해조틀이 및 갈고리류 등을 사용하여 수산동식물을 포획·채취하는 어업이라 규정하고 있고, 한편 위 수산업법의 개정에 따라 구 공유수면매립법(1990. 8. 1. 법률 제4252호로 개정된 것)도 제6조 제2호를 "어업권자 또는 수산업법 제2조 제7호의 규정에 의한 입어자"라고 개정함으로써 그 관련 조문을 정리하였다(한편 1995. 12. 30. 법률 제5131호로 수산업법이 개정되면서 공동어업이 마을어업으로 바뀌게 되어 입어에 관한 규정 내용 중 "공동어업"으로 기재된 부분도 "마을어업"으로 바뀌었다).

(D) Sub-committee

(1) In light of the overall provisions of the amended Fisheries Act and the former Public Waters Reclamation Act (amended by Act No. 5337 of Apr. 10, 1997), in order to be recognized as a right to a fishery in accordance with a certain public waters after the enforcement of the amended Fisheries Act (amended by Act No. 5337 of Feb. 1, 1991), it is insufficient to say that the fact that a person has continuously captured and gathered marine animals and plants in the relevant public waters as before and after the enforcement of the amended Fisheries Act (amended by Act No. 5337 of Oct. 10, 1997) is insufficient merely for the fact that the majority of people have continuously taken and gathered marine animals and plants in the relevant public waters as before and after the enforcement of the amended Fisheries Act (amended by Act No. 4483, Oct. 10, 199; Act No. 9973, Mar. 37, 200).

Meanwhile, the plaintiffs' request for registration in the register of fishing rights under the revised Fisheries Act is unfair because there is no original register of fishing rights in the case of the fishing ground of this case, and the above revision of the Fisheries Act is against the spirit of the Constitution such as the guarantee of property rights, etc. by infringing upon existing fishing rights without any ground. However, unlike the above revision of the Fisheries Act, according to the provisions of subparagraphs 6 and 7 of Article 2 of the revised Fisheries Act, it is apparent that the fishery owner in a place where a joint fishing right is not established under the above provisions of Article 2 subparagraph 7 of the revised Fisheries Act is not a fishery holder under the above provision (i.e., a fishery owner in a place where a joint fishing right is not established may report fishery business by practice in the case of a fishing ground where a joint fishing right is not established, but there is no way to register the original register of fishing rights with no joint fishing right established, and thus, the above revision of the Fisheries Act does not clearly violate the previous provisions of Article 901 of the Fisheries Act's interpretation of the Fisheries Act.

Therefore, in the case of this case where the Public Waters Reclamation License and Public Notice were made after the enforcement of the amended Fisheries Act, the plaintiffs' prior compensation or consent under Article 16 of the former Public Waters Reclamation Act (amended by Act No. 5337 of Apr. 10, 1997), which applies to this case, should have completed the registration in the fishery right register at the time of the enforcement of the amended Fisheries Act or completed the registration in the fishery right register within two years from the enforcement date of the amended Fisheries Act. The plaintiffs are those who have not completed the above registration. Thus, the plaintiffs are those who have continued to engage in the fishery of this case in the fishery of this case, or who have the right to receive compensation under Article 16 of the former Public Waters Reclamation Act (amended by Act No. 5337 of Apr. 10, 1997). Therefore, the plaintiffs cannot be viewed as those who have the right to receive compensation under Article 16 of the former Public Waters Reclamation Act.

(2) If so, the problem is whether the plaintiffs had engaged in a fishing activity that constitutes a fishing practice under Article 40 (1) of the former Fisheries Act before the revision of the Fisheries Act enters into force, and if the plaintiffs had acquired a fishing right under the above paragraph (1) (a) at the time of the disposition of the public waters reclamation license of this case, the above revision of the Fisheries Act and the former Public Waters Reclamation Act can recognize the same right as that recognized in the past.

However, as seen earlier, Article 11(2) of the Addenda to the amended Fisheries Act provides a transitional provision on the status of a person who has the previous fishery right. Ultimately, considering the above provision and the relevant provision, the previous person who has the fishery right can maintain the previous right even for two years from the enforcement date of the amended Fisheries Act, notwithstanding the provisions of the amended Fisheries Act, without reporting the fishery business or registering it in the original register of fishery rights. If two years have elapsed since the entry into the original register of fishery rights, there is no room to recognize it as a person who has the fishery right under the amended Fisheries Act only when two years have elapsed since the entry into the original register of fishery rights (see Supreme Court Decision 9Da37382, May 26, 200).

Therefore, in this case, the date of the disposition of the public waters reclamation license (O. 17, 191) of this case, which becomes the point of time for the standard of compensation for fishery rights due to the Saemangeum Project in this case, is apparent from February 1, 1991 when the amended Fisheries Act came into force, and if the plaintiffs had previously been engaged in the practice fishing under the former Fisheries Act, it would be said that there is no change in the fact that the plaintiffs have maintained their status as the eligible person regardless of the registration in the fishery right ledger.

(3) Determination on the plaintiffs' above claims

In light of the above legal principles, if the plaintiffs claim for damages caused by tort as in this case, and if the defendant's act is committed a tort, it should be recognized that the plaintiffs suffered substantial and realistic damage due to the commencement and implementation of the Public Waters Reclamation Corporation in this case before the lapse of the two-year grace period prior to the expiration of the above two-year grace period, even though the plaintiffs were the customary fishery right holder who had been engaged in the practice fishing under Article 40 of the former Fisheries Act in the fishing ground in this case prior to the amendment of the Fisheries Act.

(A) Whether the plaintiffs are customary fishery rights holders

(1) For the purpose of establishing a customary fishery right under the former Fisheries Act as seen above, it should be such that the fishery place continues to capture and gather marine animals and plants for a long time at the fishery place so that they would generally be accepted for the majority of the people (see, e.g., Supreme Court Decisions 9Da5840, 58457, Dec. 28, 1999). In addition, such customary fishery right is acknowledged as a matter of principle by independent household, and as regards a person who moves from a branch of a son or a person under the son of the son of the son of the son of the son of the son of the son of the son of the son of the son of the son of the son of the son of the son of the son of the son of the son of the son of the son of the son of the son of the son of the son of the son of the son of the son of the son of the son of the son of the

Therefore, even though the plaintiffs have long captured and gathered fish, bamboo, etc. in the fishing ground of this case, as seen above, it is insufficient to say that the practice fishing right has a real right effect recognized as a person who has continuously captured and gathered marine animals and plants in accordance with the practice in the joint fishing ground of this case for a long time at the joint fishing ground of this case, and that it has been done for a considerable period of time in order to recognize the practice of such a fishing ground, and it is required that the gathering and gathering of marine animals and plants by accessing the fishing ground of this case by satisfying certain requirements should be done for the majority of people around

② In light of the above-mentioned legal principles, it is difficult to find out that the plaintiffs were unable to use their respective fishery business records for the purpose of proving that they were fishery business owners Gap's above-mentioned practice and fishery business research and investigation, and that the plaintiffs were issued a certificate of completion of report with the head of Si/Gun as to the above-mentioned research and investigation institute Gap's 1's new fishery business records as the result of investigation and investigation by Gap's 1's 1's 1's 2's 1's 1's 1's 1's 1's 1's 's 's 's 's 's 's ''' and 1''' ''' ''' ''' ''' ''' ''' ''' '' '' and '1'' ''' ''' '' '' '' '' ''' '' '' ''' '1'''''''''''''''''''1''''''''''''''''''''''''''''1''''''''' ''''' '''1''''''''1'''2'''''''''''''''1''''''''2'2'.

As a result, each of the above evidence alone is insufficient to recognize that the plaintiffs continued to engage in the business of distributing booms and bamboo in the fishing ground of this case for a long time so-called practice fishing right has been established according to fishing practice since it reaches the extent that it would be generally accepted for the majority, and it is also insufficient to recognize that the so-called practice fishing right has been established in accordance with fishing practice. In addition, there is no other evidence to believe that each of the evidence (each confirmation and evaluation statement) listed in paragraph 2 of the attached Table 2 attached hereto and

In particular, considering the fact that the practice fishery right is not only a right that can be claimed and exercised by the joint holder of the fishery right even if the joint holder of the fishery right is established on the public waters in question, but also a right that has a real right that can be claimed to exclude the third party who violated the joint fishery right or damages therefrom even if the joint fishery right is not established, in this case, the use of the fishery of this case (which is divided into 13 fishing grounds) is not restricted domestically and externally as seen in the above basic facts, but also there is no evidence to recognize the plaintiffs' specific period of fishery or the result of trading of catch (the consignment, etc. through a fisheries cooperative or a fishing village fraternity). Thus, it is difficult to recognize the plaintiffs as a practice fishery right holder who has engaged in the practice fishery of this case under Article 40 of the former Fisheries Act.

(3) Therefore, the plaintiffs' assertion that the plaintiffs are the customary fishery right holder under the provisions of Article 40 of the former Fisheries Act in the fishing ground of this case is without merit.

(b)whether the plaintiffs suffered substantial and realistic damage;

① Even if a person who obtained a license for a reclamation project of public waters without compensation under Article 16(1) of the former Public Waters Reclamation Act performed the reclamation project of public waters without compensation under Article 16(1) of the former Public Waters Reclamation Act, the implementation of the project immediately does not constitute a tort against the right holder as long as there is no substantial and realistic infringement on the right holder entitled to compensation. Thus, even if the plaintiffs' practice right is acknowledged in this case, in order to constitute a tort, it should be recognized that the plaintiffs suffered substantial and realistic damage due to the commencement and implementation of the reclamation project of public waters of this case before the expiration of the two-year grace period (2 years from February 1, 1991, the enforcement date of the amended Fisheries Act).

② However, as seen earlier, the Defendant started construction of the Saemangeum Embankment 1 on November 28, 191, and started construction work around June 10, 1992. However, as to whether the Plaintiffs suffered substantial and realistic damages due to the implementation of the above construction before the expiration of the above grace period, according to the statements of No. 1111-1 and No. 2 and the appraisal entrustment, the fishing ground of this case is physically destroyed and cannot be established only with the fishing ground of the side excluded from aiding and abetting. This is based on the premise that the Saemangeum Project was completed as its original plan (business period: from February 1, 1991 to 204) and completed construction of the Saemangeum Embankment 2, 3, and 4, as seen below, it is difficult to find that the Plaintiffs suffered actual damages from the above fishing ground due to its actual loss or damage to the use of each of the above fishing grounds (the evidence of this case is hard to acknowledge that the Plaintiffs suffered actual damages prior to February 1, 1993).

Rather, the part of the embankment 1.8 km of the embankment 1, 33 km extended between the beginning of the construction work in the above Section 1 and the end of 192 after the commencement of the construction work in the above Section 1,8 km was implemented. Since around July 25, 1994, the construction of the stone embankment 1,3 dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump dump. As seen earlier, it was without significant change in each catch of the evidence as seen earlier.

(3) Therefore, even if the plaintiffs' practice fishery right is recognized, since the above practice fishery right has expired since the grace period of the above two years under the condition that the plaintiffs did not have actual and actual damage despite the commencement and implementation of the reclamation of public waters of this case, the above practice fishery right has expired. Therefore, in this regard, the plaintiffs' claim

(b)decision on claims for damages caused by reported fishing infringement;

(1) The parties' assertion

Under Article 44 of the Revised Fisheries Act, the plaintiffs asserted that they were liable to compensate the amount of compensation for losses because they caused losses to the plaintiffs by executing the reclamation of public waters of this case without fulfilling their obligation to compensate for losses even though they had a duty to compensate for losses. Accordingly, the defendant did not report legitimate fishing under Article 44 of the Revised Fisheries Act with respect to the first hand hand-on fishery in the main line within the business area of this case. Thus, the above assertion by the plaintiffs is without merit.

(2) Determination:

(A) From September 4, 191 to June 22, 1992, the public waters reclamation license date of this case, the Plaintiff filed a report under Article 44 of the amended Fisheries Act by 523 Plaintiffs 523, except for the Selection Kim Byung-mick and Kim Kim Jong-m, and the public waters reclamation license date of this case, and the type of fisheries from the Huan-man head of the Maan-gun to the Maan-Gun was issued the last hand hand fishing, the area outside the business area of this case, the period of validity was five years from the date of each report.

(B) However, if a project operator, who is obligated to compensate for losses to fishermen who were engaged in fisheries lawfully reported within a public waters reclamation project zone, does not perform the duty to compensate for losses and thereby actually and practically infringed upon the reclamation of public waters, this constitutes a tort (see, e.g., Supreme Court Decisions 98Da11529, Nov. 23, 199; 9Da37382, May 26, 2000).

However, in light of the purport of Article 44 (2) of the revised Fisheries Act, which provides that the starting point of starting the effective period of a report on fisheries shall be the date of receiving the report, and the purport of Article 33 (1) of the Enforcement Decree of the Fisheries Act, which provides that the person who reported the fisheries may reduce the effective period if necessary, violates the measures of an administrative agency taken by the public interest needs, the report on fisheries issued at the time of receiving the report on fisheries shall be recovered. In light of the purport of Article 33 (1) of the revised Enforcement Decree of the Fisheries Act (amended by Presidential Decree No. 15241 of Dec. 31, 1996), the report on fisheries under Article 44 of the revised Fisheries Act shall be deemed to be a "report requiring acceptance" which takes effect only after the acceptance of the administrative agency (see Supreme Court Decision 9Da37382 of May 26, 200), and even if the plaintiffs asserted that there was an unlawful act, it shall not be a legitimate ground for the amendment of the Fisheries Act as to the pertinent area.

In addition, since a report on fisheries on a certain public water surface after the public notice of the reclamation license is made under the premise that the restriction on the reported fishery is already objectively determined after the execution of the reclamation project of the public water surface and the restriction on the reported fishery, a person who reported fisheries after the public notice of the reclamation license of the public water surface is made shall not be deemed to have suffered special losses due to the execution of the reclamation project of the public water surface, unlike the person who completed the previous report (see, e.g., Supreme Court Decisions 98Da11529, Nov. 23, 199; 9Da37382, May 26, 2000); and the above assertion among the plaintiffs by the person who reported fisheries after October 22, 191 is without merit.

(c)Therefore, the plaintiffs' assertion on the premise that there is a legitimate fishing report under Article 44 of the amended Fisheries Act for the branch line within the project area of this case is no longer necessary to examine the remaining points.

C. Determination on the claim for compensation for each branch of fishing village fraternity

The plaintiffs asserted that the defendant is obligated to pay the compensation amount for each fishing village fraternity branch line left to the majority grandchildren including the plaintiffs (the first grandchildren who did not complete the lawful fishery report) according to the service result of the Korea Marine Development Institute of the Korea Military University. However, since the above compensation amount for each fishing village fraternity branch line of the plaintiffs' assertion is merely an evaluation by the service agency, barring special circumstances such as the defendant's agreement to pay the above compensation amount to the above first grandchildren, the above service result alone does not create a claim for the above compensation amount. However, there is no evidence to prove that the defendant agreed to pay the above compensation amount to the above first grandchildren, and there is no evidence to prove that the above first grandchildren agreed to pay the above compensation amount (the result of the fact-finding inquiry by the court below on the Director of the Saemangeum Marine Development Support Center of the Korea Saemangeum Marine Development Institute, it can be recognized that the Minister of Agriculture and Forestry did not approve the payment of compensation amount for each fishing village village branch line.).

D. Determination on other allegations

In addition, the plaintiffs argued that the failure of the plaintiffs to compensate for losses is against the spirit of the Constitution and the Fisheries Act, legal equality, and principle of trust protection, etc. although they are engaged in the first hand fishery and suffered losses due to the implementation of the Saemangeum Project. However, as seen in the above basic facts, in relation to the implementation of the Saemangeum Project, the defendant has prepared a compensation plan for the right holder under Article 16 of the former Public Waters Reclamation Act and legitimate permitted and reported fishery operations in the branch line in the project area of this case, and conducted the budget continuously, and it is unclear whether only some fishermen, including the plaintiffs, who claimed compensation for losses, are excluded from the compensation list because it is unclear whether they are the persons eligible for compensation for losses. Accordingly, the defendant's implementation of the Saemangeum Project without compensation for losses to the plaintiffs who are judged to be unclear, cannot be viewed as unlawful since the defendant's implementation of the project cannot be seen as a tort (in addition, the above plaintiffs cannot be seen as being legally reported to legitimate fishermen and fishermen of reported fishery business under Article 16 of the former Public Waters Reclamation Act or Article 4 of the Fisheries Act.

In addition, the plaintiffs also asserted that it is improper that the defendant paid compensation to the majority of the residents who do not meet the compensation requirements while making compensation due to the Saemangeum Project, but did not pay compensation on the ground that the plaintiffs who actually carried on the first hand fishing in the branch line within the project area of this case applied the compensation-related Acts and subordinate statutes strictly and did not complete the fishery report. However, even if the defendant paid compensation to the residents who do not meet the compensation requirements stipulated in the relevant Acts and subordinate statutes, it is merely that the defendant voluntarily paid compensation at his own expense, and as seen above, it cannot be deemed that the right holder under Article 16 of the Public Waters Reclamation Act, or the right holder under Article 44 of the amended Fisheries Act, or the right holder under Article 16 of the former Public Waters Reclamation Act, or the right holder under Article 44 of the amended Fisheries Act, can not be deemed

4. Conclusion

Therefore, the claim of this case against the defendant of this case shall be dismissed as it is without merit. Since the part against the plaintiffs in the judgment of the court below is justified in its conclusion, the plaintiffs' appeal shall be dismissed and it is so decided as per Disposition.

Judges Park Ha-young (Presiding Judge)