[채석허가신청불허처분취소][공1995.10.15.(1002),3427]
The meaning of "area collected with permission" under the proviso of Article 91-3 (1) 3 of the Enforcement Decree of the Forestry Act.
"Area for quarrying with permission" under the proviso of Article 91-3 (1) 3 of the Enforcement Decree of the Forestry Act means a zone for quarrying with permission at the time of application for quarrying permission, and even if there was an area for quarrying with permission in the past when the application for quarrying was not made, it cannot be deemed that it constitutes "area for quarrying with permission obtained under the proviso of Article 91-3 (1) 3 of the Enforcement Decree of the Forestry Act."
Enforcement Decree of the Forestry Act Article 79(2)3, the main sentence of Article 91-3(1) and proviso of Article 91-3(1)3, and proviso of Article 91-3(1)3
[Defendant-Appellee] Plaintiff 1 et al.
200
Daejeon High Court Decision 94Gu2143 delivered on March 24, 1995
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
Article 91-3 (1) (main sentence) and Article 79 (2) 3 (proviso) of the Enforcement Decree of the Forestry Act provide that in principle, permission for quarrying shall be prohibited in areas of 2,00 meters from the river base temporary area in public or private forests: Provided, That the proviso of Article 91-3 (1) 3 (proviso) of the Enforcement Decree of the Forestry Act provides that in cases where a stone collection zone is already collected with permission prior to the enforcement date of the above Enforcement Decree ( July 14, 1990) and the products are collected with permission and it is deemed necessary for the supply of resources in the area, stone collection permission may be granted even within 2,00 meters from the river base temporary area of the river base and 2,000 meters from the area adjacent to the area where the stone is collected, and where a stone collection zone is not conducted with permission for quarrying permission granted under Article 91-3 (1) 3 (proviso) of the Enforcement Decree of the said Act, it shall not be deemed that it falls under the area of Article 1 (3).
As determined by the court below, if the permission for quarrying was revoked on October 4, 1993 with respect to the land of this case located within 2,000 meters in the Si/Gun/Gu, and there was no quarrying from that time until March 21, 1994, which was the time when the application for the permission for quarrying was filed, the land of this case shall not be deemed to fall under the "area where stone is collected with the permission under Article 91-3 (1) (proviso) (3) of the Enforcement Decree, and therefore, the permission for quarrying shall be prohibited pursuant to the main sentence of Article 91-3 (1) and the proviso of Article 79 (2) (3) of the Enforcement Decree of the above Act, so the disposition of this case, which rejected the above permission for quarrying by the plaintiff, is lawful.
The judgment of the court below to the same purport is just, and there is no error of law as to the interpretation of Article 91-3 (1) of the Enforcement Decree of the Forestry Act.
In addition, even though the judgment of the court below that the plaintiff's application for quarrying of this case is different from the permission that the plaintiff had received in the past in terms of the application for quarrying, etc., the application for the permission of this case cannot be accepted unless the land of this case does not fall under the "area where the permission was obtained in accordance with the proviso of Article 91-3 (1) 3 of the Enforcement Decree." Thus, the above error does not affect the conclusion of the judgment.
There is no reason to discuss this issue.
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 Lee Yong-hun (Presiding Justice)