대한제국 이래 우리나라 어업권의 연혁과 어업관행의 관습법화

Abstract

Viewing fisherey right as a kind of real right, Korean Fisheries Act improves the rights of fishers. In addition, defining fishery right as a kind of real right by providing that “the provisions of the Civil Act governing land shall apply mutandis”, it is aiming at the protection of fishers’ rights. However, despite such provisions of Fisheries Act, there have been a number of infringements and disputes on licensed fisheries among fishers. Such disputes are mainly due to the understanding of fishery right not as a real right but only as a regulatory regime by the government. Excessive intervention by the governments’s management of the fishery rights. Therefore, the failure in the government regulation on fishery righrts should be addressed by the real right approach in the Civil Act. Im principle, waters, that is object of fishery right, is owned by the government, so, the obtaining of the ownership by a private person is strictly restricted. The subjects of fishery right are fisher, fishing village fraternities, district fisheries cooperatives, fisheries partnership, and the objects of fishery right are public waters,the exercise and alteration of fishery right takes place on the sea. The alteration of fishery right takes place by the transfer of right and the registration on the original register of fishery rights. Therefore, when fishery right is infringed, preemptive effects and proprietary rights are recognized for the protection of fishers’ right. In the exercise of proprietary rights, claim for the prevention and removal of interruption of fishery right is rightly recognized. However, regarding the exercise of the right to request a returen and the right to collection, those rights cannot be exercised for the marine animals or plants whose amnifestation is difficult. So, those rights can be exercised only for the things whose manifestation is possible such as ships, facilities or manufactured products.