어업손실보상 제도의 문제점과 개선방안 연구

Abstract

Since 1970's, the Republic of Korea has been implementing positively public projects for reclamation to solve the problems of site insufficiency. Moreover, It promotes public facility projects e.g. urban planning fac., housing, harbor construction works, building lots, industrial compound construction in order to urbanize and industrialize its land. In the process of abovementioned development projects, there has been occurring conflicts and disputes related to compensation between government(or public institution, executor etc.) and fishermen. And those situation continues now. Any person suffering damage may claim for compensation under the provisions of Article 81 (1) of Fishery Law. This treatise reviews concerning legal protection of the property right under the korean constitution and studies on law system to solve the problems of Fishery Compensation and proposes the improvement measures for proper compensation by theoretically examining the current fishery compensation system and the issues of damage compensation. The system of fishery compensation for public projects should be now properly improved in the case of performed at coastal waters fishing area. The need for improving the system of fishery compensation is due to various problems related to the compensation system under the current laws and regulations. Legal principals of just compensation in the system of expropriation for public projects is established related to the interpretation of just compensation under the provisions of Article 23 (3) of the Constitution, which sets out the standard for compensation.

First of all, terms of Fishery Law are very diverse. so, It is necessary to unify the terms of fishery, Fishing Rights, fishermen etc.

Second, Legislation System relatied to fishery compensation was indiscriminately unificated, regardless of differences caused by between public projects and fisheries administrative dispostion. A general law for fishery compensation may be made as soon as possible. If that is impossible now, all acts and regulations related to fishry compensation must be unified based on the Act of the acquisition of estate for public works and the compensation.

Third, the scope of fishery compensation is now raised a problem. Compensation for Fishing Rights extinguished must be graded according to the term of validity. And indirect loss outside of public project area may be compensated before project is enforcement, as well as direct loss, when the loss is estimated. Moreover, Living Compensation is needed for fishermen to live stabilized lives.

Forth, subjects and standards of valuating indemnity are also now raised problems. The methods of appointing research institution must be stipulated separately from fishermen. In connection with standards of valuating indemnity, the basic time of the average amount of catch per year, average unit price, fishing expenses must be concorded. As for calculation of fishing rights compensation money, reduction(capitalization) rate(12%) of fixed rate is excessive as for now. So it is reasonable to applicate adjustable rate or announced rate from the Bank of Korea considering average interest rate for latest year. Regarding difficulty for a public institution executor to collect objective data suggested from fishermen for fishery compensation, the fishery compensation system should be reasonably revised as abovementioned.

Fifth, appraisal and survey systems may be reproved. As the prinsiple of Reductionism is the best method for valuation of fishery compensation, Transaction Comparison Method should be deleted .in the provisions of Article 28 of Standards Rule of Real Estate Appraisal Practice. Survey systems may be provided in the law of Real Estate price Announcement and Appraisal. Education and Training for Compensation Professionals is necessary periodically. It will be reasonable to transfer the adjudication authority of the Central Land Tribunal to Local Land Tribunal. It is important to appoint additionally Specialized Compensation Agencies and to construct D/B of Compensation Model.

Key Words: Just compensation, Fishery, Fishery Law, Fishing Rights, Fishery Compensation, Fishermen, Valuation, Reductionism, Survey systems.