[광업권설정허가처분취소청구사건][고집1972특,250]
Whether or not the permission granted after the establishment of a mining right is granted in duplicate with a mining area of the same kind of mineral is unlawful.
If the provisions of Articles 5, 22, and 24 of the Mining Industry Act are gathered, asbestos mines buried in the same mining area shall be regarded as minerals of the same kind as tin minerals registered in the name of the plaintiff buried in the same mining area under the same law. Thus, since the cancellation of tin mining rights, including the extracting rights for asbestos mines, were extinguished due to the cancellation thereof in the name of the plaintiff, which included the above mining area, and the cancellation ruling becomes final and conclusive, and the previous cancellation ruling becomes final and conclusive for the said mining area, the permission for the establishment of the existing asbestos mining right after the date of restoration becomes final and conclusive. As a result, the establishment of the mining right becomes final and conclusive in the same mining area, which is in violation of the provisions of Articles 24 and 22 of the Mining Industry Act.
Articles 5, 22, and 24 of the Mining Industry Act
Supreme Court Decision 72Nu149 delivered on March 13, 1973
Plaintiff
Minister of Commerce and Energy
The permission for the establishment of mining rights in the attached Form, which was made by the defendant on January 12, 1970 to the intervenor assisting the defendant, shall be revoked.
Litigation costs shall be borne by the defendant.
The same shall apply to the order.
Since the defendant revoked the active mining right in the name of the plaintiff as of September 6, 1969, which was registered in the mining register of this case, since the plaintiff had no legal interest in the subsequent disposition, the plaintiff's main lawsuit is unlawful. Thus, as long as the revocation of the above active mining right in the name of the plaintiff was revoked on April 10, 1972 by the final judgment of the plaintiff's action based on the plaintiff's action, the above active mining right in the name of the plaintiff is recovered retroactively from the original disposition of this case, so the plaintiff's legal interest in this case is infringed. Thus, the defendant's above assertion is groundless.
For the following merits:
According to Article 5 of the Mining Industry Act, the term “mining rights in this Act” means the rights to mine the registered minerals in a certain mining area (hereinafter referred to as “mining area”) and the other mineral buried in the same mineral deposit. As such, the mining rights in question shall be interpreted as the right to extract all the registered minerals within the mining area, regardless of the production type of mineral deposits or the distribution of mineral deposits existing in the same mineral deposit within the same mining area. Under Article 96 of the same Act, the term “1 mining rights in respect of the same mining area for which the first and sixth mining claims were filed by the defendant; the term “6 mining rights in respect of the same mineral deposit” shall be deemed as the term “6 mining rights in respect of the same mineral deposit”; the term “1 mining rights in respect of which the first and fourth mining rights in question shall be deemed as the term “6 mining rights in respect of the same mineral deposit”; the term “1 mining rights in question shall be deemed as the term “6 mining rights in respect of the same mining area for which the first and sixth mining rights in this case shall not be permitted.”
Therefore, in the above mining area, the above asbestos minerals buried in the same mineral deposit shall be deemed to be the minerals of the same kind as the active minerals registered in the name of the plaintiff buried in the same mineral deposit. Thus, the active mining rights in the plaintiff's name including the above asbestos mining area (in order to commence the actual mining) shall be recovered retroactively due to the confirmation of the cancellation ruling of the above cancellation ruling, the defendant's disposition against the above mining area in the purport of the claim for the establishment of asbestos mining rights which are regarded as the same mineral as the registered active minerals as the registered active minerals, as seen earlier, as a result, the establishment of mining rights overlap with the mining area of the same mineral, which violates the provisions of Articles 24 and 22 of the Mining Industry Act, thereby infringing on the plaintiff's legal interest in the same mining area.
Therefore, since the plaintiff's claim for the cancellation of the objection is well-grounded, it is accepted and the costs of lawsuit are assessed against the losing defendant.
[Attachment List omitted]
Judge Lee Jae-sung (Presiding Judge)