[1] The method of calculating the amount of damages due to the loss of the customary fishing right under Article 40(1) of the former Fisheries Act

[2] The meaning of "right according to the practice of "the right of fishery" under Article 40 of the former Fisheries Act

[3] The owner of the customary fishing right under Article 40 of the former Fisheries Act

[1] In compensating for the customary fishing right under Article 40 (1) of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990), the method of compensating for the cancellation of the license for the joint fishing business, etc. under Articles 8 and 24 of the same Act cannot be inferred from the application of the method of compensating for the cancellation of the license for the joint fishing business under Articles 8 and 24 of the same Act, and it is reasonable to analogically apply the provisions on compensation for the reported fishing business

[2] The term "right according to the practice of entry" under Article 40 of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990) refers to the right to capture or gather marine animals and plants continuously from the public waters for a long time prior to the establishment of the joint fishery right on a certain public waters without a license for fishery business, and it reaches the extent that it can be generally accepted by the majority of the people. This refers to not only the right to claim and exercise against the joint fishery right holder, but also the right to claim and claim the exclusion against the third party who contests it, and it can be recognized regardless of whether the joint fishery right has been established on the public waters in question. It can not be said that the right derived only from the limited real right on the joint fishery right after the establishment of the joint fishery right.

[3] The holder of a customary fishing right may become a fishing village fraternity, and the fishermen who are natural persons may become such fishing village fraternities. However, to become the holder of a customary fishing right, the fishing village fraternity has the organization and substance as an organization and is engaged in fishing activities as an organization for a long time to the extent that it is generally accepted for the majority of the people.

[1] Articles 8, 22, 24, and 40 (1) of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990) / [2] Article 40 of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990) / [3] Article 40 of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990)

[1] [2] [3] Supreme Court Decision 97Da41028 delivered on June 11, 1999 (Gong1999Ha, 1342) / [1] Supreme Court Decision 95Da15032, 15049 delivered on April 14, 1998 (Gong1998Sang, 1310) / [2] Supreme Court Decision 88Da14250 delivered on July 11, 1989 (Gong1989, 1215), Supreme Court Decision 96Da15176 delivered on December 11, 199 (No Publication in Official Gazette), Supreme Court Decision 98Da8790 delivered on September 3, 199 (No Publication in Official Gazette), Supreme Court Decision 99Da15049 delivered on September 16, 198 (No Publication in Official Gazette) / [3] Supreme Court Decision 98Da1998Da37979 delivered on September 196, 19998.

Plaintiff (Appointed Party) 1 and 99 others (Attorney O Jong-sung, Counsel for the plaintiff-appellant)

Korea Water Resources Corporation (Law Firm Squa, Attorneys Seo Seo-woo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 96Na31880 delivered on September 8, 1999

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

1. We examine the Plaintiff’s grounds of appeal.

In compensating for the customary fishing right under Article 40(1) of the former Fisheries Act (amended by Act No. 4252 of Aug. 1, 1990; hereinafter referred to as the “Act”), the method of compensating for the cancellation of the license for the joint fishing business, etc. under Articles 8 and 24 of the Act cannot be inferred from the application of the method of compensating for the cancellation. The Supreme Court has already declared that the provision on compensation for the reported fishery business under Article 22 of the Act, which is similar to the practice fishing and form, should be applied by analogy, is the legal principle that the Supreme Court has already declared several times (see, e.g., Supreme Court Decision 95Da15032, 15049, Apr. 14, 1998).

In calculating the amount of damage caused by the loss of the fishery right of this case by the Plaintiff and the designated parties (hereinafter referred to as the “Plaintiff, etc.”), the court below’s calculation by analogical application of the provision on compensation for the above reported fishery is justifiable as it is in accordance with the above legal principles, and there is no error in matters of law by misapprehending the legal principles on the fishery right. The Supreme Court’s decision in

2. We examine the Defendant’s ground of appeal No. 1.

The term "right according to the practice of entry" in Article 40 of the Act refers to the right to capture or gather marine animals and plants for a long time on a certain public water surface before the establishment of a joint fishing right for a certain public water surface without a license for fishery business and to the extent that it is generally accepted by the majority of the public water resources. This is not only possible to assert and exercise the right against the joint fishing right holder, but also to a third party who contests it, and it can be acknowledged as a right regardless of whether a joint fishing right has been established on the public water in question, and it cannot be deemed as a limited real right on the joint fishing right only after the establishment of a joint fishing right (see, e.g., Supreme Court Decisions 8Da14250, Jul. 11, 1989; 96Da15176, Dec. 11, 198; 97Da4108, Jun. 11, 1999).

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to practice fishing under the former Fisheries Act.

3. We examine the defendant's second ground for appeal.

The subject of a customary fishing right may be a fishing village fraternity, and a natural person may be a fishermen. However, for a fishing village fraternity to become the subject of a customary fishing right, the fishing village fraternity shall have the organization and substance as an organization and engage in fishing activities as an organization for a long time to the extent that it is generally accepted for the majority of the people for a long time (see, e.g., Supreme Court Decisions 96Da13927, Sept. 18, 199; 97Da41028, Jun. 11, 199).

In the same purport, the court below determined that the plaintiff et al. engaged in fishery activities in the fishing ground of this case was not an organization by establishing the rules and establishing an organization's intention, but only engaged in fishery activities in the fishing ground of this case as a resident living together in the village of Korea, and therefore, the fishery right alleged by the defendant was not owned by the above fishing village fraternity, but belongs to each of the plaintiffs. In light of the records, the court below's findings of fact and determination are just, and there were no errors in the misapprehension of legal principles as to the reversion of the customary fishery right, as otherwise alleged in the grounds of appeal.

4. We examine the defendant's third ground for appeal.

In light of the records, it is reasonable that the court below calculated the amount of damages of the plaintiff et al. by recognizing the annual average production amount and annual average production amount and annual annual fishery expenses around 1988 in the fishing ground of this case by the plaintiff et al., who is a practice fishery operator based on the appraisal result of the non-party of the first instance trial and the fact-finding result thereof, and there is no error in violation of the rules of evidence

5. Therefore, all appeals are dismissed, and the costs of appeal are assessed against each losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ji-dam (Presiding Justice)