[2] The case holding that the amount of damages suffered by the first transferee of a mining right is not the transfer price but the amount equivalent to the market price of the mining right when the object of the mining right is considerably damaged and its reinstatement becomes impossible by social norms, in case where the first transferee of the mining right has transferred it to a third party again and the third party has made a transfer registration of mining right, and the third party has damaged a substantial portion of the object of the mining right to construct the factory site on the land for the establishment of

[2] The case holding that where a double transferee of a mining right transfers it to a third party again, a double transferee and a third party has made a transfer registration of a mining right, and the third party has damaged substantial parts of the mining right for the construction of a factory site on the land on which the mining right is established, and the third party has become unable to restore the site of the mining right to its original state due to social norms, double transfer of the mining right shall be deemed a tort against the first transferee, although it is null and void as a juristic act contrary to social order, since the first transferee and the third party have made a transfer registration of a mining right, even if the transfer registration has been made in violation of social order, the first transferee cannot be deemed to have become unable to acquire the mining right due to the cancellation of the transfer registration, and thus the damages suffered by the first transferee shall be equivalent to the market value of the mining right at the time when it is impossible to restore to its original state because the third party has no special reason to the contrary.

1. As to the violation of the rules of evidence regarding the consent to transfer of mining right shares

Examining the reasoning of the judgment below in light of the records, the court below, based on the evidence adopted in its judgment, declared that the non-party 1 and the non-party 2-3, who are the mother of the defendant 1 and the non-party 1, own 1/3 equity shares, respectively. On November 20, 1987, the plaintiff purchased 30,000,000 won from the non-party 1 and the non-party 2, who purchased 30,000 won from the non-party 1 and the non-party 2, who was the title holder of the above mining right, as the plaintiff's partner, expressed his consent to transfer of the mining right on December 26, 197, on condition that the non-party 1 and the non-party 2, who were the non-party 1 and the non-party 1, who were the plaintiff's partner, will later enter into a mining right operation agreement with the transferee and the non-party 1, who violated the rules of evidence.

2. As to the misapprehension of legal principles as to the scope of mining right and damages

According to the reasoning of the judgment below, the court below held that it is reasonable to view that the defendant, who became aware of the fact that the non-party Samsung General Construction Co., Ltd. (hereinafter referred to as "Tsung Construction") had performed reclamation works of public waters in order to create a petroleum chemical factory site in the mining area site of this case, etc., had the plaintiff purchase large compensation from the non-party 1, etc. of the mining right of this case, and has yet to complete the registration of transfer of mining right in the future, he would acquire all the shares of the mining right of this case and have the plaintiff acquire compensation in the future, and actively encourage the non-party 1, etc., who is the trustee, to double sell the shares of the mining right of this case to the non-party 1, etc. who has the obligation to transfer the mining right of this case, and caused the plaintiff to acquire the mining right shares of the plaintiff by allowing the non-party 1, etc. to do so. The damages suffered by the plaintiff at the time of extinguishment of the above mining right of this case, barring any special circumstance.

The amount of damages arising from the failure to acquire an object that could have been acquired by a third party's illegal act is equivalent to the price of the object at the time of the illegal act unless there are special circumstances (see, e.g., Supreme Court Decisions 67Da1014, Sept. 5, 1967; 70Da560, Jul. 24, 1970; 94Da13435, Jun. 30, 195). Here, the tort at the time of illegal act refers to the time when the owner is unable to acquire the object under social norms and the tort is completed. However, the transfer of ownership shares by a double act becomes invalid as a juristic act contrary to social order, and as such, even if the transfer of ownership was completed in the future of Samsung Construction, the Plaintiff cannot be deemed to have acquired the above mining right due to the cancellation of the transfer of ownership, and thus, it cannot be said that the remainder of the land for which the Plaintiff acquired the above mining right cannot be acquired by the transfer of the mining right was established for a long time.

Therefore, the judgment of the court below that the damages suffered by the plaintiff are the price at the time of the extinguishment of mining rights by the non-party 1, etc. is somewhat insufficient. However, since the amount of damages is calculated based on the price paid by Samsung Construction to the defendant, it shall be justified in its conclusion. Meanwhile, the plaintiff is seeking compensation for damages caused by the plaintiff's tort, not by the cause of infringement of mining right itself as a mining right holder, but by the plaintiff's acquisition of mining right shares which can be objectively exercised as a mining right holder, the plaintiff cannot criticize the above judgment of the court below on the ground that the plaintiff was registered as a mining right holder, and as pointed out in the grounds of appeal, it cannot be viewed as "the ordinary damages suffered by the plaintiff due to the defendant's tort" as "the ordinary damages incurred by the plaintiff without commencement of prospecting or without obtaining authorization of mining plan" under Article 16-2 (1) 3 of the Enforcement Rule of the Mining Industry Act. The grounds of appeal pointing this out cannot be accepted.

3. As to the violation of the rules of evidence regarding the calculation of damages and the amount of compensation

According to the reasoning of the judgment of the court below, the court below assessed the price of the share of the mining right, including ordinary mining rights, by deeming that the mining right which is the object of the sale of this case is the share of the mining right including ordinary mining rights, and considering the records, the above fact-finding by the court below is acceptable, and there is no error in violation of the rules of evidence and there is no error in the misapprehension of the rules of evidence. Further, the court below's determination of the amount of the mining right of this case under the premise that there is no dispute between the parties (refer to the records 1721 of the record), and there is no error in the violation of the rules of evidence or in the calculation of damages. The ground for appeal pointing this out also cannot be accepted.

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the defendant who is the appellant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-chul (Presiding Justice)