[재결처분취소][공2000.11.1.(117),2116]
[1] The scope of "road where the extraction of minerals is restricted" under Article 48 (1) of the former Mining Industry Act
[2] Where the criteria for assessing the amount of compensation for losses for the target of expropriation and the subject of expropriation were added to the items of land or right tax at the time of the announcement of whether the target of expropriation was a project, the time of project approval which serves as the basis for calculating
[1] Article 48 (1) of the former Mining Industry Act (amended by Act No. 5824 of Feb. 8, 1999) provides that a mining right holder shall not mine minerals without permission of the competent authority or permission of the owner or interested party for the purpose of preventing the destruction of public structures, buildings, etc. in advance due to the implementation of mining operations and protecting the public interest. Thus, among the above public structures, roads include roads with necessary facilities and form for the traffic of the general public as well as roads for the purpose of traffic of the general public. In order to mine in the surrounding areas, the road owner shall obtain permission of the road manager or permission of the mining plan.
[2] In assessing the amount of compensation for losses for the target of expropriation, the approval of a plan for the direct purpose of the implementation of the public project in question, price fluctuation due to the public announcement, without considering it, shall be set at a reasonable price based on the current status and surrounding environment at the time of the adjudication of expropriation. In the event that the target of expropriation was omitted from the land or the right tax at the time of the public announcement of the approval of the project, the time of the first
[1] Article 48 (1) of the former Mining Industry Act (amended by Act No. 5824 of Feb. 8, 1999) / [2] Article 46 of the Land Expropriation Act
[1] Supreme Court Decision 86Nu2919 delivered on February 23, 198 (Gong1988, 572) / [2] Supreme Court Decision 91Nu308 delivered on December 24, 1991 (Gong1992, 697), Supreme Court Decision 96Nu2569 delivered on August 29, 197 (Gong197Ha, 2914), Supreme Court Decision 97Nu1375 delivered on September 18, 1998 (Gong198Ha, 2526)
Plaintiff
Central Land Tribunal and one other
Gwangju High Court Decision 97Gu170 delivered on February 20, 1998
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
1. As to the grounds of appeal Nos. 1, 2, 3, and 5
Article 48 (1) of the former Mining Industry Act (amended by Act No. 5824 of Feb. 8, 1999) provides that a mining right holder shall not mine minerals in a place within 50 meters above the surface of the earth, such as a railroad, track, road, water system, canal, river, river, possession, irrigation, drainage, facilities, tombstones, tombstones, tombstones, temple, etc., or in a place within 30 meters above the surface of the earth, or within 30 meters above the surface of a cemetery or building, without the permission of the competent authority or the permission of the owner or interested party. The purpose of this provision is to prevent the destruction of a public structure, building, etc. following the implementation of mining operations and protect the public interest. Accordingly, the roads of the above public structure include roads with necessary equipment and form for the traffic of the general public as well as roads stipulated in the Road Act, and in order to mine in its surrounding area, permission or approval of the manager of the road should be obtained in addition to the mining plan.
On the same premise, it is reasonable that the court below, in assessing the amount of compensation for the plaintiff's mining right on the ground that there is no evidence to prove that the plaintiff has obtained permission or approval from the competent authority, owner, or interested person for mining within 50 meters of the road of this case as stated in the judgment of the court below, the measures taken by the defendant Central Land Expropriation Committee who has adopted each appraisal excluding the surrounding 50 meters of the road of this case from the object of compensation evaluation shall be justified, and there is no violation of the rules of evidence, violation of the rules of
2. As to ground of appeal No. 4
In assessing the amount of compensation for losses for the target of expropriation, the reasonable price shall be determined on the basis of the current status and surrounding environment as at the time of the adjudication of expropriation without considering the price fluctuation due to the public announcement of the plan for the purpose of the implementation of the relevant public project, and in addition, if the target of expropriation was omitted from the land or the right tax at the time of the public announcement of the approval of the project, the time of the approval of the project which serves as the basis for calculating the amount of compensation shall be the date of the first public announcement of the approval of the project. In the same purport, even if the existing purpose was abolished due to the incorporation of the road in this case into the housing site development project and abolition of the existing purpose, it is reasonable that the court below determined that the status of disuse after the date of the public announcement of the housing site development project was abolished, and there is no violation
3. Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Song Jin-hun (Presiding Justice)