공익사업시행지구 밖의 어업손실보상에 관한 연구 『공익사업을 위한 토지 등의 취득 및 보상에 관한 법률 시행규칙』 제63조의 해석을 중심으로

Abstract

The regulation on 'the Compensation for Fishery outside Zones where Public Works are Performed' not only can cause arbitrary interpretation and judgment of its contents, but also contains considerable problems, such as irrationally stipulating the contents of the regulation itself. In order to solve these problems, the significance and legal basis (II), requirements (III), methods, procedures and contents (IV) of indirect loss compensation in fishery were reviewed sequentially. First, 'the Compensation for Fishery outside Zones where Public Works are Performed' can be defined as "Where the performance of public works causes damage to fishery in the vicinity of the relevant zone where public works are performed, Compensation for such damages". Such compensation is based on Article 23(3) of the Constitution, Article 79(2) of the Land Compensation Act, and Article 63 of the Enforcement Rules of the Land Compensation Act. Second, regarding the 'compensation requirements', it is contemplated that 'performance' should include 'operation', 'degree of damage' does not need to be considered in the requirements, and it is necessary to revise the regulations 'after the date of an announcement of approval of a project', and 'date of completion of construction of the project' needs to be interpreted as 'the date of occurrence of damage' or 'the date of completion of operation of the project'. In particular, 'verification of the actual damage' should be viewed as a matter of 'compensation content' rather than 'compensation requirements'. Third, with respect to the 'compensation method', it has a characteristic that it is carried out ex post 'when damage has occurred' or 'when the actual damage can be verified'. Regarding the 'compensation procedure', a 'Adjudication' is required. Regarding the 'compensation content', 'actual damage' is compensated to the extent that it does not exceed 'cancellation compensation'.