어업권의 법적 성격에 근거한 손실보상금 산출방법 개선방안 연구

Abstract

The reclamation of the sea has been widely conducted for the land required for industry, housing, main road, and harbor facilities as well as for the development of farm land for the food self-sufficiency. The coastal fisheries have been threatened by not only direct damage to the coastal fishing ground producted by the reclaiming works but also effluence of oil and pollutant on the sea. The reclamation of the public surface of the water, however, has not been reduced, and still under planning for Incheon New Airport, Gadeok New Harbor, Geoga Bridge. As the result of these works, it's inevitable for fishermen to get damage to their fishing ground, and thus the compensation for the loss is the most important in public works. The constitution Clause 3, Article 23 says, the expropriation, use or limitation of the property right in public needs should be followed by the law, and the fair compensation money should be provided. Public needs means the cases when there are inevitable needs of the expropriation, use or limitation of the private property right for actualization of public works or public interests, national security, and the order preservation. So, it is justifiable to compensate fairly the loss for the limitation of the property right. If the fair compensation means the entire compensation for the full value of the private property right. The value of the property right should be paid to the fishermen who lost their meal ticket due to enforcement of the public works. If the compensation is made for overestimated fishery rights in line with existing earnings without understanding on the details of the rights that judge the value of the property rights, it will be difficult to secure the budget in public works which needs huge estimate, and also it will influence on the enforcement and the date of the public works. It's also to say that it will became far from the concept of "Fair compensation" stated on the constitution taking the point that the budget is made up by the taxes into our consideration. At this point, we have to clarify the details and the scope of the rights for "Fair compensation", because the rights for any object varies including the perfect ownership, and each rights has different exercise, scope, and limitations, and thus each rights has different value according to its details. We can hardly find the study on the relation between the legal character of fishery rights and the evaluation method even though many studies on the compensation regulation in terms of economic theory have been announced. This paper is focused on the evaluation method to fulfill "Fair Compensation" based on the legal character of fishery rights - as a part of private and proprietary rights - which remains limited real right such as the term of validity, the ban on lease which are stated in the law of fisheries instead of perfect ownership in case of compensation for the loss due to the case of cancellation of the fishery rights.