[1] The legal status for two years after the enforcement of the former Fisheries Act by the holder of the customary fishing right at the time of the enforcement of the said Act, as amended by Act No. 4252 of Aug. 1, 1990

[2] The method of remedy in case where a person who reported the fishery under Article 41 of the Fisheries Act becomes unable to engage in the reported fishery any longer due to the execution of the reclamation or reclamation project for agricultural purposes by the Rural Development Corporation (=civil procedure)

[3] In a case where the operator of the reclamation project of public waters performed construction without performing the duty of compensation for losses and thereby actually and practically infringed on the reported fishery operator, whether tort is established (affirmative) and the scope of compensation for damages (=amount equivalent to compensation for losses

[4] Whether a person who reported fishery business after the public notice of permission for reclamation of public waters may have suffered special loss due to the implementation of the reclamation project of public waters (negative)

[5] The legal nature of the report on fisheries under Article 44 of the Fisheries Act (=report requiring acceptance) and whether a legitimate report may be deemed to have been made in a case where it is unlawful to exclude the reclaimed area of public waters from the operating area when accepting the report on fisheries (negative)

[1] Article 2 subparag. 7 of the former Fisheries Act (amended by Act No. 5131 of Dec. 30, 1995), amended by Act No. 4252 of Aug. 1, 1990, newly provides for the definition of a holder of a fishery right under Article 2 subparag. 7 of the same Act (amended by Act No. 5131 of Dec. 30, 1995), "a holder of a fishery right" means a person who has reported his/her fishery business under Article 44 and who is registered in the original register of fishery rights under the conditions as prescribed by the Presidential Decree among those who are recognized to have continuously engaged in catching and gathering marine animals and plants on the pertinent public waters before the establishment of a joint fishery right." Thus, it is insufficient for the majority of those who have continuously captured and gathered marine animals and plants on the pertinent public waters after the enforcement of the same Act to be recognized as a right to enter into the original register of fishery rights under Article 11(2) of the same Act and who has no longer been recognized as a holder of a fishery right under the previous law.

[2] Article 81 (1) 1 of the Fisheries Act provides that a person who suffers loss due to a disposition taken against fishery business licensed, permitted or reported on the grounds falling under Article 34 (1) 1 through 5 of the same Act and subparagraph 8 of Article 35 of the same Act (limited to cases falling under Article 34 (1) 1 through 5 of the same Act; hereinafter the same shall apply), or due to the pertinent grounds, the extension of the validity period of a fishery business license under Article 14 of the same Act may claim compensation from the administrative agency which issued such disposition. Thus, a person who suffers loss due to the above disposition against the licensed, permitted or reported fishery business may claim compensation for loss by civil litigation against the local government or the State to which the administrative agency that requested the disposition belongs, or the State to which the administrative agency that requested the disposition belongs, and such legal principle shall also apply where the person who reported fishery business under Article 44 of the same Act becomes unable to engage in the reported fishery business as a result of the execution of the reclamation or reclamation business

[3] If a project operator, who is obligated to compensate for losses to fishermen who were engaged in fisheries within a public waters reclamation project zone by lawfully reporting fisheries and reporting fisheries, does not perform the duty to compensate for losses and thereby actually and practically infringed upon the reclamation of public waters, such act constitutes a tort. In this case, the damage suffered by the person who reported fisheries is the amount equivalent to the compensation for losses.

[4] A report on fisheries on a certain public water surface after the public notice of a reclamation license is given shall be deemed to have been placed on the premise of the restriction under the condition that the execution of the reclamation project of public water surface and the restriction on fisheries to be reported thereon has already become objectively definite. Thus, a person who reported fisheries after the public notice of a reclamation license cannot be deemed to have suffered special losses due to the execution of the reclamation project of public

[5] Furthermore, in light of the purport of Article 44 (2) of the Fisheries Act, which provides that the starting point of starting a fisheries report shall be the date of receiving the report, and the purport of Article 33 (1) of the former Enforcement Decree of the Fisheries Act (amended by Presidential Decree No. 15241 of Dec. 31, 1996), which provides that when the person who reported the fisheries violates the measures taken by the administrative agency as necessary for the public interest, the person who reported the fisheries shall recover the certificate of completion of the fisheries issued at the time of receiving the report, the report on the fisheries under Article 44 of the Fisheries Act shall be deemed as the "report requiring acceptance" which takes effect only after the acceptance by the administrative agency. Thus, even if the administrative agency having jurisdiction over the fisheries report received the report and excluded the reclaimed area from the operation area of the public waters, so long as there is no legitimate acceptance by the competent administrative agency as to the excluded area, it cannot be deemed as a legitimate report on the fisheries under Article 44 of the same Act.

[1] Article 7 of the Public Waters Reclamation Act, Articles 2 subparag. 7, 16, and 44(1) of the former Fisheries Act (amended by Act No. 5131 of Dec. 30, 1995), Article 11(2) of the Addenda (amended by Act No. 4252 of Aug. 1, 1990), Article 40(1) of the former Fisheries Act / [2] Article 81(1)1 of the Fisheries Act / [3] Article 16(1) of the Public Waters Reclamation Act, Articles 393, 750, and 763 of the Civil Act / [4] Article 44 of the Fisheries Act, Articles 12, and 20 of the former Enforcement Decree of the Fisheries Act / [5] Article 13(1) of the former Fisheries Act (amended by Presidential Decree No. 15134 of Dec. 31, 196)

[1] Supreme Court Decision 99Da35263 delivered on October 10, 1997 (Gong1997Ha, 3385), Supreme Court Decision 9Da35263 delivered on November 26, 199 / [2] Supreme Court Decision 94Nu13848 delivered on July 26, 1996 (Gong1996Ha, 267), Supreme Court Decision 97Da46450 delivered on February 27, 1998 (Gong1998Sang, 89Sang, 891), Supreme Court Decision 97Da54109 delivered on June 11, 199 [34] Supreme Court Decision 98Da11529 delivered on November 23, 199 (Gong194, 1997; Supreme Court Decision 9Da39849 delivered on September 19, 195]

Plaintiff 1 and 205 others (Attorneys Lee Hong-ro, Counsel for the plaintiff-appellant)

The Agricultural and Fishing Villages Development Corporation (Law Firm East, Attorneys Yt-bak et al., Counsel for the plaintiff-appellant)

Daejeon High Court Decision 98Na4383 delivered on June 4, 1999

The judgment below is reversed. The case is remanded to Daejeon High Court.

The grounds of appeal are examined.

1. According to the reasoning of the lower judgment and the reasoning of the first instance judgment cited by the lower court, the lower court recognized the following facts by comprehensively taking account of the evidence adopted in that judgment.

The defendant is the operator of the comprehensive development project of the promotion district agricultural development project of the farmland improvement project under the former Agricultural Community Modernization Promotion Act (repealed by Article 2 of the Addenda to the Farmland Improvement Association Act, Act No. 5077 of Dec. 29, 1995), and the implementation plan of the comprehensive development project of the promotion district agricultural development project of the above promotion district (hereinafter referred to as the "public project in this case") publicly notified by the Ministry of Agriculture and Forestry No. 91-9 of Mar. 25, 191 is as follows:

(1) Business purposes: Securing water resources and creating agricultural infrastructure;

(2) Business area: Hongsung-gun ( Address 1 omitted), ( Address 2 omitted), ( Address 3 omitted), ( Address 4 omitted), ( Address 5 omitted), ( Address 6 omitted), ( Address 6 omitted), ( Address 7 omitted), ( Address 8 omitted), ( Address 9 omitted), ( Address 10 omitted), ( Address 11 omitted), ( Address 12 omitted), ( Address 13 omitted), ( Address 13 omitted).

(3) Business area: 8,100 ha

(4) Details of business: Construction of facilities, such as tide embankments, drain gatess, water quality improvement facilities, access roads, pumping stations, and irrigation channels.

Around August 21, 191, the public project of this case was announced to the public project operator around August 21, 199, and the defendant obtained a license to reclaim public waters on November 8, 1991 in relation to the above project and announced by the Ministry of Agriculture and Forestry No. 91-35 on November 13, 191, and the public announcement was made on January 25, 192 as the Public Notice of the Ministry of Agriculture and Forestry No. 92-9 on January 25, 192. Accordingly, the defendant started construction for the public project of this case and continues construction for the installation of the embankment.

On the other hand, some of the plaintiffs (designated parties) and designated parties (hereinafter referred to as "the plaintiffs") were issued a certificate of completion of the last-man fishery business collecting scop and diggings, etc. from August 2, 1991 to November 19 of the same year, which was after the date of the public works implementation plan of the public works of the public project of the public project of the public project of the public project of the public project of the public project of the public project of the public project of the public project of the public project of the public project of the public project of the public project of the public project of the public project of the Republic of Korea, and from the Gun of the public project of the public project of the public project of the public project of the public project of the public project of the public project of the public project of the military project of the Republic of Korea

B. Based on the above facts, the court below rejected the plaintiffs' claim that they would have engaged in fisheries as a practice within the above business area. The plaintiffs' claim that they would have suffered damages from the extinguishment of the plaintiffs' practice fishery right by executing public waters reclamation works without compensation or consent from the plaintiffs. Thus, those who are entitled to compensation for losses in farmland improvement projects and public waters reclamation works related thereto under the former Agricultural Community Modernization Promotion Act are "the fishery right holder or the fishery holder" under Article 2 subparagraph 7 of the Fisheries Act. It is clear that the plaintiffs' claim is not the fishery right holder. Meanwhile, there is no evidence to prove that the plaintiffs had registered in the fishery right register, and therefore, the plaintiffs' claim that the reported fishery business area was not the one under Article 2 subparagraph 7 of the Fisheries Act, and therefore, the plaintiffs' claim that the reported fishery business area was not the one under Article 9 of the former Agricultural Community Modernization Promotion Act and the Public Waters Reclamation Act, and therefore, the plaintiffs' claim that the reported fishery business area should not be protected by the plaintiffs.

2. As to the ground of appeal on infringement of customary fishing right

Article 40(1) of the Fisheries Act (amended by Act No. 4252, Aug. 1, 1990; hereinafter referred to as the " Fisheries Act") provides that "any holder of a fishery right for joint fishing shall not refuse the entry of any person who engages in fishing from the existing fishing ground by its previous practice." The previous provision on fishing ground practice for which only the holder of a fishery right for joint fishing ground under subparagraph 7 of Article 2 has been engaged shall be permitted to enter the fishing ground under the conditions as prescribed by the fishing ground management rules under Article 38." The new provision on definition of a holder of a fishery right under subparagraph 7 of Article 2 provides that "any holder of a fishery right may enter the fishing ground again be permitted to enter into the fishing ground under Article 44 and have been continuously captured and gathered on the waters before the joint fishing right is established, and any person who has not entered into the previous fishery right register for more than 9 years after the previous revision of the Fisheries Act shall be deemed to have been registered within the previous fishery right register for more than 10 years after its entry into the fishery right register.

Therefore, the court below erred in the misapprehension of legal principles of Article 11 (2) of the Addenda of the Fisheries Act, which points out the following facts: (a) under the premise that there is no room for any further existence of a holder of fishery right under the amended Fisheries Act, which requires a report of fishery business and a registration in the original register of fishery rights after the enforcement of the amended Fisheries Act; and (b) under the premise that the rights of the holder of the previous fishery right as the holder of the previous fishery right are within a two-year grace period, regardless of whether or not it is within the two-year grace period; (c) when the public waters of this case have been continuously captured and gathered from the public waters of this case; and (d) when the existing fishery right has been enforced before the expiration of the two-year grace period, the public waters reclamation project of this case was commenced and implemented before the expiration of the two-year grace period; and (d) the plaintiffs cannot be registered in the original register of fishery rights within a two-year grace period and thus, (e) the plaintiffs cannot become a holder of fishery rights under the amended Fisheries Act.

3. As to the ground of appeal on violation of reported fishery

Article 81(1)1 of the amended Fisheries Act provides that "Any person who suffers losses due to the causes falling under Article 34(1)1 through 5 and subparagraph 8 of Article 35 (limited to cases falling under Article 34(1)1 through 5 of the same Act; hereinafter the same shall apply) of the same Act may request compensation from the administrative agency which issued the disposition for the extension of the term of validity of a fishery license under Article 14 due to the said causes may request compensation from the person who suffered losses due to the said dispositions." Thus, if the person who suffered losses due to the said dispositions against the administrative agency that issued the disposition or the local government or the State to which the administrative agency that requested the disposition belongs, is entitled to compensate for losses due to civil action against the administrative agency that made the disposition, or the person who made the report on fishery business under Article 44 of the amended Fisheries Act, who was unable to engage in the fishery business for the purpose of agriculture and the person who made the report on fishery business under Article 94 of the same Act, without reporting the actual performance of the fishery business within 9.

Therefore, the court below's rejection of the plaintiffs' assertion that part of the plaintiffs lawfully reported fishery business under Article 44 of the amended Fisheries Act, but the plaintiffs' claim for damages equivalent to compensation for losses due to the abolition of reported fishery business, on the ground that "it cannot be deemed that there is an administrative disposition, such as restriction on reported fishery business under Article 81 of the amended Fisheries Act, only with the execution of the public project in this case," does not constitute an unlawful act of misunderstanding the legal principles as to compensation for damages for reported fishery business. The part pointing this out is also with merit

However, since a report on fisheries on a certain public water surface after the public notice of the reclamation license is made on the premise that the implementation of the public water surface reclamation project and the restriction on fisheries to be reported therefrom has already become objectively clear and conclusive, a person who reported fisheries after the public water surface reclamation license is announced shall not be deemed to have suffered special losses due to the implementation of the public water surface reclamation project, unlike the person who completed the previous report (see Supreme Court Decision 98Da11529, Nov. 23, 199). Therefore, in determining this part of the plaintiffs' assertion, the court below should first consider whether the plaintiffs reported the fisheries before the public water surface reclamation license of this case is announced.

In addition, in light of the purport of Article 44 (2) of the amended Fisheries Act, which provides that the starting point of the starting point shall be the date of the establishment of the effective period of the report on fisheries, and the purport of Article 33 (1) of the former Enforcement Decree of the Fisheries Act (amended by Presidential Decree No. 15241 of Dec. 31, 1996), which provides that if necessary, the person who reported the fisheries violates the measures of the administrative agency taken by the necessity of public interest, the report on fisheries under Article 44 of the amended Fisheries Act shall be deemed as the "report requiring acceptance" which takes effect only after the acceptance by the administrative agency. Therefore, even if the competent administrative agency receives some of the plaintiffs' reports on fisheries and receives some of the plaintiffs' reports on fisheries except in the area of fisheries of this case, so long as there is no legitimate acceptance by the competent administrative agency as to the excluded area, it shall not be deemed as a legitimate report on fisheries under Article 44 of the amended Fisheries Act.

4. Therefore, without examining the remaining grounds of appeal, the judgment of the court below 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 Lee Yong-woo (Presiding Justice)