Law Firm Sang-tae, Counsel for the plaintiff-appellant

[Defendant-Appellant]

2. The revocation of the registration of extracting rights against the Plaintiff on September 26, 2017 by the Defendant is revoked.

3. One-half of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

A. The Plaintiff had the following extracting rights (hereinafter referred to as “the extracting rights of this case”) for the purpose of aggregate extraction business and sales and transportation business:

B. On September 26, 2017, the Defendant: (a) revoked the extraction right of this case by applying Article 35(2)3 of the Mining Industry Act (hereinafter “the instant disposition”); and (b) registered the extinction of the extraction right of this case on the same day, on the ground that “the Plaintiff did not continue to report mineral production under Article 83 of the Mining Industry Act for three years.”

[Reasons for Recognition] Unsatisfy, entry in Gap evidence 1 and 4 (including branch numbers for those with additional numbers), the purport of the whole pleadings

2. Whether the part of the lawsuit in this case seeking revocation of the registration of extinction of extracting rights is legitimate

The plaintiff's claim for this part ex officio is a result of a claim for cancellation of cancellation registration under the Mining Registration Decree, i.e., cancellation of cancellation registration (see Supreme Court Decision 65Nu145, Apr. 6, 196) and eventually seeks administrative disposition benefits against an administrative agency (see Supreme Court Decision 65Nu145, Apr. 6, 196). A lawsuit seeking execution judgment ordering an administrative agency to take a certain administrative disposition under the current Administrative Litigation Act is not allowed (see, e.g., Supreme Court Decision 97Nu3200, Sept. 30, 197). Of the lawsuit in this case, the part seeking cancellation of the extraction right

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

On June 21, 2017, the Defendant sent a notice of hearing on the instant disposition of revocation of extracting rights (hereinafter referred to as “instant notice”) to H, the representative director of the Plaintiff Company of which was suspended from performing his/her duties due to a provisional disposition of suspending resident stay support at Daegu District Court. Accordingly, the Plaintiff failed to be given an opportunity to attend the hearing procedure and to vindicate because it was unable to legally receive a prior notice of disposition and a notice of hearing procedure from the Defendant. Accordingly, the instant disposition was unlawful as it was conducted without notifying the procedures for hearing necessary for the procedure of the instant disposition.

B. Determination

1) Relevant legal principles

A) Article 14(1) of the Administrative Procedures Act provides that "the service shall be made by means of mail, delivery, information and communications network use, etc., and the address, residence, place of business, office, or e-mail address (hereinafter referred to as "domicile, etc.") of a person who is to receive service (including his/her representative or agent) shall be the domicile, place of business, office, or e-mail address (hereinafter referred to as "resident, etc.") of the person who is to receive service. The service on a corporation is a representative

B) Meanwhile, Article 99 of the Mining Industry Act provides that "where the Minister of Trade, Industry and Energy intends to cancel a mining right pursuant to Article 35 of the Act, he/she shall hold a hearing." This hearing system provides that "The Minister of Trade, Industry and Energy shall hold a hearing in cases where he/she intends to cancel a mining right." The purpose of the hearing system is to consider the possibility of correction of unlawful grounds by giving the parties an opportunity to submit materials favorable to defend themselves and appropriate for the reasons of administrative disposition, and to ensure caution and appropriateness of the disposition. Thus, if an administrative agency, in particular, provides that a hearing is conducted in the grounds of the disposition, etc. when taking infringing administrative disposition, the administrative agency must hold a hearing unless it falls under exceptional cases that do not require a hearing under the relevant Act and subordinate statutes, and the disposition lacking such procedures constitutes grounds for revocation as illegal disposition (see, e.g., Supreme Court Decision 2002Du8350, Jul. 8, 2004).

2) Determination

A) In full view of the following facts and circumstances, the evidence mentioned above, Gap evidence Nos. 2, 3, 5 through 7, Eul evidence Nos. 1 and 2, and the overall purport of the pleadings, the instant disposition is unlawful and revoked on the ground that the notice of this case was not lawfully served on the plaintiff and was made without giving the plaintiff an opportunity to state his opinion during the hearing procedures.

(1) On May 26, 2016, the Plaintiff moved its head office from the business territory of the business territory of the business territory of the business territory of the business territory of the business territory of the business territory of the business territory of the business territory of the business territory of the business territory of the business territory of the business territory of the business territory of the business territory of

(2) On June 21, 2017, the Defendant sent the instant notice from August 29, 2017 to August 30, 2017, stating the date of the hearing, to the Plaintiff’s former location entered in the mining ledger at the time, and returned without being served. On June 28, 2017, the Defendant sent the instant notice to H’s domicile, the representative director as indicated in the Plaintiff’s corporate registry, without verifying the transfer of the location of the headquarters in the Plaintiff’s corporate registry, and received it by H on the following day.

(3) However, H was appointed as the representative director of the Plaintiff Company on May 10, 2016, and on June 20, 2017, the performance of its duties was suspended by the decision of the provisional disposition of suspending the performance of duties (No. 2016Kahap20014), and H was not legally entitled to receive the instant notice.

B) As to this, the Defendant alleged to the effect that the registration following the provisional disposition suspending the above execution of duties was completed on July 4, 2017, after the receipt of the above H’s notice of this case, the Defendant cannot oppose the Defendant, who is a bona fide third party with respect to matters not registered under Article 37(1) of the Commercial Act and Article 54(1) of the Civil Act. However, the third party under the above provision refers to the other party to the ordinary transaction relationship on an equal footing, and the administrative agency in the case of an administrative disposition is not a third party (see, e.g., Supreme Court Decision 90Nu4235, Sept. 28, 1990). The Defendant’s above assertion is without merit.

4. Conclusion

If so, the part of the lawsuit in this case regarding the claim for revocation of the registration of the termination of extracting rights is unlawful, and thus, the claim for revocation of the registration of extracting rights is justified and it is so decided as per Disposition.

Judges Gin Jae-ology

Judge Choi Jong-Un