관행어업권에 대한 소고

Abstract

Traditionally, there has been a practice of the fishery activities for a long time in a certain fishery field, and the practice of the fishery activities that majority of people have obtained the legal assurance of the practice is a common law. This right of common law is called Practice Fishery Rights. But there are several expression of practice of fishery activities like “practice of fishery activities,” “fishery activities by practice,” and so on. Moreover, its legal nature also has been controversial. This controversy occurred when terms like practice of fishery activities has appeared on the legal provisions after the practice fishery rights had been accepted the written law. But the real right has been granted in general, and if precedent has been engaged in fishery for a long time, it has been widely granted as a real right. Revised Fisheries Act law compels to report fishery business and to register in the original register of fishery rights. Also, addenda of it says that all of the practice fishery rights that don’t register in two years are extinct. The problem is, whether it is against the prohibition of ex post facto law or not to deprive the right through retrospective legislation. Although Constitutional Court Act did judgement that it is not a law that property rights is retroactively deprived, it is still doubtful whether it is. Because it is the result of deprivation of vested rights followed by ex post facto law because practice fishery rights is all extinct. According to supplementary provision, The case that traditional practice of fishery activities is not registered in legal delay of two years is the problem of extinction of practice fishery rights, not the problem of compensation followed by extinction of rights. Addenda 11 and the decision of the Supreme Court and the Constitutional Court say that it is unfair to deprive the practice of fishery rights without compensation. This controversy arises from the fact that in the legislation abolishing the conventional law, the rights already established in the common law are admitted, but there is no transitional measure to be applied after the conduction of the legislation abolishing the common law. In this paper, contents of discussion are listed by following order: meaning of practice fishery rights, legal nature of practice fishery rights, continuation of abolition of practice fishery rights, and compensation followed by abolition of practice fishery rights.