[1] Where an indirect loss occurred outside a public project area as a result of the implementation of a public project did not reach an agreement with the project operator, and there is no express provision on compensation, whether the victim may claim compensation to the project operator by applying mutatis mutandis the provision on compensation for loss under the Enforcement Rule of the Public Project Compensation

[2] In a case where a fisheries cooperative ceases to conduct a consignment sale business, which was granted a dominant status in the area subject to the reclamation of public waters pursuant to the relevant Acts and subordinate statutes, whether the Enforcement Rule of the Public Compensation of Losses and Losses Act should apply mutatis mutandis to the loss of revenue from consignment sale (affirmative)

[3] The meaning of Article 62 of the Enforcement Decree of the Fisheries Act, which provides that sales commission shall be deducted when calculating the amount of compensation for losses caused by cancellation of fishing right

[1] Article 23 (3) of the Constitution provides that "the expropriation, use, or restriction of property rights due to public necessity and compensation therefor shall be made by law and shall be paid just compensation," as a result of the implementation of a public project, even in cases where there is no express legal basis on compensation for indirect losses that may affect the land owner due to the acquisition or use of land, etc. for the public project," and Article 3 (1) of the Act on the Acquisition of Land, etc. for Public Use and Compensation for Loss provides that "the act of infringing property rights of the people shall be based on the formal law, and the act of infringing property rights of the people shall be based on the formal law, and the compensation for losses shall be provided in addition to the grounds for infringement of property rights necessary for the public project." Article 23-2 through 7 of the Act on the Acquisition of Land, etc. for Public Projects provides that "the project owner shall compensate for the losses suffered by the owner of land, etc. due to the acquisition or use of land, etc. for the public project."

[2] A fisheries cooperative has been receiving commission fees in the course of operating the consignment sale of fishery products, and the operation thereof is given exclusive status in the area subject to the consignment sale pursuant to Article 21(1) of the former Decree on the Protection of Marine Resources (amended by Presidential Decree No. 1333, Mar. 28, 191). However, in a case where the operation of fishery activities in the area subject to the consignment sale is impossible due to the implementation of the reclamation project of public waters, and the operation of the fisheries cooperative is suspended from the consignment sale on some consignments, the consignment sales commission fees which the fisheries cooperative lost are not the direct business loss due to the reclamation project of the project operator, but the indirect business loss is not the direct business loss due to the reclamation project, but the fisheries cooperative, the infringer of which, as a matter of course, naturally infringes on the property rights' interest derived from the consignment sale project of the fisheries cooperative, beyond the limit of the property rights' interest arising from the reclamation project at the time of the public waters reclamation license announcement, and it is reasonable to determine the scope of the loss subject to the consignment sale.

[3] The meaning of Article 62 of the Enforcement Decree of the Fisheries Act, which provides that sales commission shall be included in the expenses required for fishery management and deducted from the calculation of the amount of compensation for losses caused by the cancellation of fishery right, is merely that the nature of the sales commission shall be deemed as the expenses and the deduction shall be made at the time of calculating the amount of compensation. Such interpretation cannot be interpreted in a case where the person entitled to compensation receives the sales

[1] Article 23(3) of the Constitution of the Republic of Korea, Article 3(1) of the Special Act on the Compensation for Public Loss, Article 23-5 and Article 23-6 of the Enforcement Rule of the Special Act on the Compensation for Public Loss / [2] Article 23(3) of the Constitution of the Republic of Korea, Article 3(1) of the Special Act on the Compensation for Public Loss, Article 23-5 and Article 23-6

[1] Supreme Court Decision 94Da38038 delivered on July 14, 1995 (Gong1995Ha, 2788), Supreme Court Decision 94Nu13848 delivered on July 26, 1996 (Gong1996Ha, 2677), Supreme Court Decision 96Nu1597 delivered on September 5, 1997 (Gong1997Ha, 3113), Supreme Court Decision 95Da29161 delivered on January 20, 1998 (Gong198Sang, 551 delivered on June 11, 1999) (Gong199Ha, 1347)

Gyeonggi-nam Fisheries Cooperatives (Attorney Final White-gu et al., Counsel for defendant-appellant)

The Rural Development Corporation (Attorney Dog-won, Counsel for the defendant-appellant)

Seoul High Court Decision 97Na41938 delivered on April 14, 1999

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. On the first ground for appeal

Article 23 (3) of the Constitution provides that "the expropriation, use or restriction of property rights due to public necessity and compensation therefor shall be paid by law," and accordingly, the act of infringing property rights of the people must be based on the formal law; the act of infringing property rights of the people must be based on the formal law; Article 3 (1) of the Act on Special Cases Concerning the Acquisition of Land, etc. for Public Projects (hereinafter referred to as the "Special Cases Concerning the Compensation for Loss of Land, etc.") provides that "the loss suffered by the owners of land, etc. due to the acquisition or use of land, etc. for public projects shall be compensated by the project operator." In light of the fact that Article 23-2 through 7 of the Enforcement Rule of the same Act provides that the compensation shall be made under certain conditions on the indirect loss of the business and structures, etc. located outside the public project execution zone, the implementation of the public project shall be easily foreseeable to cause such loss due to the implementation of the public project; and it shall be interpreted that the provision on compensation for loss should be applied to the specific scope of compensation for loss.

According to the reasoning of the judgment below, the court below held that the plaintiff's association's members were those who reside in Gyeonggi-gun and operated a sales entrusted with the sale of fishery products captured and gathered by its members. The plaintiff's operation of the above sales entrusted with the sale of fishery products was granted exclusive status in the target area pursuant to Article 21 (1) of the former Ordinance on the Protection of Fishery Resources (amended by Presidential Decree No. 1333 of March 28, 191). Meanwhile, the defendant's operation of the above sales entrusted with the sale of fishery products was justified in receiving compensation from the Minister of Agriculture, Forestry and Fisheries for public waters reclamation license (the notice was as of April 10 of the same year) for the Gyeonggi-gun-gun and Jinjin-gun-gun, and it was not clearly possible for the plaintiff to receive compensation for losses from the above sales entrusted with the sale of fishery products under Article 21 (3) of the former Ordinance on the Protection of Fishery Resources (amended by Presidential Decree No. 13335 of March 28, 1991).

In addition, according to the records, the plaintiff's closure of Choamam and Scam consignment sales place is found to be due to the fact that all the areas of the consignment sales place were included in the area of the defendant's reclamation business and the whole operation was impossible. Thus, the defendant's argument in the grounds of appeal that the above provision of the Enforcement Rule of the Act on Special Cases cannot be applied by analogy because the plaintiff's closure of the consignment sales place does not meet the requirement of "where two-thirds or more of the 2/5 of the 200 or more of the 2

2. On the second ground for appeal

According to the reasoning of the judgment below, the court below rejected the defendant's assertion that the plaintiff's fees from the members of the plaintiff's cooperative are not charged with the sales of fishery products for profit in the nature of the plaintiff's cooperative because it is not necessarily a non-profit business for public interest, but a non-profit business for profit within the scope necessary to achieve its purpose, and it is possible to conduct a profit-making business incidental to a non-profit business, so long as profits are appropriated for the purpose of a non-profit business, it does not go against the essence of the non-profit business. In order to confirm such contents, Article 65 of the Fisheries Cooperatives Act and Article 38 (1) of the Enforcement Decree of the same Act provide for the prohibition of profit-making or speculation as an exception to Article 6 (2) of the same Act, which provides that the fisheries cooperative can conduct a profit-making business such as sales of fishery products for profit-making business in order to achieve its purpose. Thus, it is impossible to operate a sales of fishery products for profit-making in the nature of the non-profit business. In light of the relevant provisions of the above Fisheries Cooperatives and the nature of the sales commission fees.

Meanwhile, the meaning of Article 62 of the Enforcement Decree of the Fisheries Act, which provides that sales commission shall be included in the expenses necessary for fishery management in calculating the compensation amount due to the cancellation of fishing right, is nothing more than that of the party who pays sales commission and deducts it at the time of calculating the compensation amount from the standpoint of the party who pays the sales commission. In the case of the plaintiff, if the sales commission is received as revenue as in the case of the plaintiff, it cannot be interpreted as such. Therefore, the defendant's argument in the grounds of appeal that the above sales commission revenue is not subject to the compensation

3. On the third ground for appeal

Examining the reasoning of the judgment below in light of the records and relevant Acts and subordinate statutes, in light of the provisions of Articles 17 and 16 (1) of the Public Waters Reclamation Act which declared the principle of compensation in advance in the reclamation project of public waters, the court below can clearly predict that the Plaintiff would incur business losses equivalent to the above consignment commission fees at the time the Defendant’s notice of the reclamation project license of this case was given, and its scope could be determined specifically. Furthermore, as long as the Plaintiff actually discontinued the above reclamation project, the Defendant is liable to compensate the Plaintiff for losses assessed as of the date of the notice of the above reclamation project license, and even if the time of the actual commencement of the reclamation project of this case was delayed or later changed by the administrative authority’s policy, even if the Plaintiff lost all or part of the exclusive status in the above reclamation project of fishery products consignment sales project of this case, it is reasonable to conclude that the Plaintiff cannot be deemed to lose the claim for compensation already acquired by the Plaintiff due to changes after such change of circumstances. In addition, there is no error of law by misunderstanding the legal principles as to

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

Justices Cho Chang-hoon (Presiding Justice)