漁業權의 特徵과 法的 性質에 관한 小考

Entering the 21st century, the interest in the ocean and its resources from countries all over the world have been increasing and the reason for such increased interest is due to sea farming which is considered to be a fishery right that is a common part of coastal fishing. Under the Fisheries Act, the term “fishery right” means a right to exclusively operate a certain fishery business within certain ocean surfaces by obtaining a license from the relevant administrative office. There are competing views as to whether the legal characteristic of a fishery right should be considered to be a private right or a public right. However, the nature of fishery rights grants the exclusive right to catch and gather marine animals and plants in specific waters and excluding third parties from enjoying such right, and is intended to legally protect the private economic interest derived from the specific water surface invested in by the particular person having such license. Such legal protection is afforded when a legal relationship is created between the licensee and a trespasser when the licensee enforces its claim of real right or claim for damages against such trespasser. Therefore, fishery rights should be considered to be a private right rather than a public right. Within the popular view that fishery rights should be treated as a private right, there are divides as to whether it should be viewed as a property right or a real right. However, as the transferability of fishery rights and provision thereof as security are limited and the Fisheries Act treats it as a real right, the legal characteristic of a fishery right should be viewed as a real right. Also, with respect to the view of the fishery right as a real right, although the theory of denial of a simple real right, the theory of real right ownership, absolute theory of acts of fishery business and the fishing ground dominance theory are at odds with each other, fishery right is a real right and, as the object of a fishery right is the fishing grounds and the marine animals and plants, the fishing ground dominance theory is relatively more reasonable than the other theories. Thus, Article 16(2) of the Fisheries Act states that a fishery right is a real right, to which provisions of the Civil Act governing land will apply mutatis mutandis, except as provided otherwise in the Fisheries Act. The Fisheries Act, as a special law, considers the fishery right as a real right.