2013Guhap4989 Revocation of Disposition of Refusal of Application for the Establishment of Exploration Right

A

The head of the Mining Registration Office

June 14, 2013

June 28, 2013

1. On November 9, 201, the defendant revoked the application for the establishment of the exploration right (application number B) against the plaintiff on November 9, 2011.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On April 4, 2011, the Plaintiff filed an application with the Defendant for the establishment of the exploration right (hereinafter “application number B; hereinafter “application of this case”) by making gold and silver as the target mineral in accordance with Article 15 of the former Mining Industry Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter “Act”) for the establishment of exploration right in the C zone extending over the field of rice and pre-North Korea, etc., respectively, pursuant to Article 15 of the Enforcement Decree and Enforcement Rule of the former Mining Act (hereinafter “Enforcement Rule”).

B. On July 18, 2011, the Defendant requested consultation at the time of Jeollabuk-do, Chungcheongnam-do, Chungcheongnam-do, Jeonju-gun, and Seosan, the competent administrative agency, in order to examine whether the extraction of minerals in the application area causes harm to the public interest. As a result, the Defendant received a reply that the establishment of mining rights should be restricted for conservation of the natural environment, since the application area is located in D-do parks from the competent administrative agency from July 21 to August 11 of the same year.

C. On October 24, 2011, the Defendant submitted a mining evaluation report (hereinafter “mining evaluation report”) to the Plaintiff, and again requested consultation with the Jeollabuk-do and Chungcheongnam-do. As a result, on October 31 and November 7 of the same year, the Defendant was expressed that the establishment of mining rights should be restricted for the same reason. D. On November 9, 2011, the Defendant agreed by the management authority on the establishment of mining rights and rejected the instant application pursuant to Article 24(1) of the Act (hereinafter “instant disposition”).

E. Accordingly, the Plaintiff filed an objection under Article 90 of the Act, but the Minister of Knowledge Economy, on November 27, 2012, rejected the instant application under the proviso to Article 18-2 (2) of the former Guidelines for Handling Mining Business (amended by Ordinance of the Ministry of Knowledge Economy No. 201, Mar. 26, 2012; hereinafter referred to as “Guidelines”), since the application area falls short of the standard of scale and dignity of minerals prescribed in the attached Table of the former Rules for Handling Permission for Mining Works in Park Area (amended by Ordinance of the Ministry of Environment No. 459, Jun. 14, 2012; hereinafter referred to as “Office Rules”), the Minister of Knowledge Economy rejected the instant application under Article 3 of the Administrative Rules and Article 18-2 (2) of the former Guidelines for Handling Mining Business (amended by Ordinance of the Ministry of Knowledge Economy No. 2012-67, Mar. 26, 2012).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 4, 5, Eul evidence Nos. 1 through 5, the whole pleadings

A. The plaintiff's assertion

(1) Even though the Mining Industry Act, which was amended to reasonably divide mining rights by separating mining rights into exploration rights and extraction rights according to the stage of mine development, and to recognize the existence of minerals and the results of exploration rights for economic feasibility, was enforced on January 28, 2010, the defendant denied the application of this case solely on the ground that the application area is located in a Do park. It is unlawful by misapprehending the meaning of "where the public interest under Article 24 (1) of the Act is harmed without considering the characteristics of exploration rights distinct from the extracting rights."

(2) Under Article 15(5) of the Act, an on-site investigation shall be conducted in principle upon filing an application for the establishment of a mining right. In particular, in the case of the application of this case, an on-site investigation is required to clearly clarify the existence of controversy over the quantity of mineral deposits contained in the mineral deposit description, but the Defendant rendered a decision not to allow the application of this case in the process of public interest consultation. This is unlawful as it is not in compliance with the procedures for permission of the mining right under the

B. Relevant statutes

Attached Form is as shown in the attached Form.

C. Determination

(1) Whether it is detrimental to the public interest

(A) Article 24 of the Act provides that exploration of minerals in an area for which an application is filed shall prejudice the public interest. If it is recognized, the establishment of mining rights shall not be permitted, and the standards acknowledged by Ordinance of the Ministry of Knowledge Economy that it damages the public interest pursuant to paragraph (3) of the same Article are delegated. Accordingly, Article 11(1) provides that an area for which an application is filed shall be subject to reclamation under the basic plan for reclamation of public waters established pursuant to Article 22 of the Public Waters Management and Reclamation Act, but the area for which an application is subject to an area for a park under the Natural Parks Act does not include cases where an area for which an application is subject to an area for a park is subject to an area for a park under the Natural Parks Act. Accordingly, consultation on whether the establishment of mining rights under the Natural Parks Act is restricted pursuant to Article 11(2) of the Enforcement Rule of the Natural Parks Act, and the Natural Parks Act does not stipulate that "mining of minerals" is subject to permission, and thus, the term of exploration rights under Article 23(1) of the Mining Rights Act shall be separately defined as "the period of exploration Rights Act."

It is difficult to regard it as being.

(B) In addition, Article 18-2(1)1 of the Guidelines requires consultation with the competent management authority in cases where the application area falls under a park area stipulated in Articles 4 through 6 of the Natural Parks Act. However, this also appears to have not reflected the distinction between the exploration right and the extraction right, but it is difficult to view that the establishment of the exploration right in the park area was established under the consultation of public interest in light of the language and structure of the relevant Act and the text and structure of the relevant Act and subordinate statutes

(C) On the other hand, since the application area does not meet the standard of scale and dignity of minerals as stipulated in the attached Table of the Office Rules, the application of this case cannot be permitted pursuant to Article 3 of the Office Rules and Article 18-2 (2) proviso of the Office Rules. Since the Office Rules stipulate the criteria for permission to extract minerals and for consultation on the establishment of mining rights in a park area, it can be functioned as a basis for balancing the public interest achieved by preserving a park area and the interests that can be gained by the establishment of mining rights. However, the provisions of Articles 1, 2, and 3 of the Office Rules stipulate that all of the provisions on the premise of extraction rights, not the exploration right, are all the provisions on the premise of the extraction rights, which are not the exploration right, and the proviso of Article 18-2 (2) of the Office Rules, the application of this case cannot be rejected on the ground that the office rules were abolished on June 14, 2012 immediately after the disposition of this case, and accordingly, the application of the Office Rules cannot be rejected (the same as below).

(D) Therefore, the instant disposition that deemed that the application area of the Plaintiff who filed an application only for exploration rights, other than extracting rights, is in a park area and is detrimental to the public interest solely on the grounds that the competent management authority oppose the establishment of a mining right

(2) Whether an on-site investigation should be conducted

(A) Article 15(5) of the Act provides that an application for the establishment of a mining right shall be filed in principle, and that an on-site investigation may not be conducted in exceptional cases where there are grounds prescribed by the Enforcement Decree. As to the grounds for exception, Article 11(1) of the Enforcement Decree provides that "where the existence of a target mineral is confirmed by a report or a document prepared by the State, an institution of a local government, or an institution recognized by the Minister of Knowledge Economy" (Article 11(1) of the Enforcement Decree), "where a professional engineer under the National Technical Qualifications Act confirms whether the target mineral exists in accordance with the survey and report prepared by him/her (Article 15(2) of the Act)" (Article 15(2) provides that "where the existence of a target mineral is confirmed in accordance with the mineral description (Article 17(1) provides that "where the existence of the target mineral is confirmed by the Ordinance of the Ministry of Knowledge Economy in accordance with the foregoing subparagraph 2 or 3, the types of minerals not field survey shall be determined by the Ordinance of the Ministry of Knowledge Economy."

(B) Meanwhile, Article 16 of the Guidelines provides that "the head of the mining registration office shall conduct a field investigation where the existence of the target mineral is not verified pursuant to Article 11 (1) 1 through 3 of the Enforcement Decree. In this case, he/she may conduct a field investigation even if the contents of the report, documents, or mineral deposit description for the target mineral are uncertain or it is necessary to confirm the existence of a dispute."

(C) In full view of the structure and text of the aforementioned relevant statutes, since the instant application is subject to gold and silver, which are minerals stipulated by the Minister of Knowledge Economy under Article 17(1) of the Guidelines, the Defendant, in principle, can conduct a field investigation and omit a field investigation only when the existence of the target mineral is confirmed by the mineral deposit description or report, etc. Therefore, the Defendant’s assertion that the instant application was not necessary to conduct a field investigation as it was decided to deny the instant application at the stage of consultation with public interest.

(D) In addition, the mineral deposit description submitted by the Plaintiff is evaluated based on the sample collected in the vicinity of the previous mine and its contents are uncertain. Since there is a dispute over store volume, household mining volume, active water, etc. (if the contents of the mineral deposit description are trusted, the fixed store size of the application area shall be 64,064 tons, 54,054 tons of household mining volume, and 10,000 tons per year, the sales amount shall be KRW 2.35 billion per year, 5.5 years for household mining, average dignity of gold shall be 3.3g/t, and it is difficult to believe that the criteria for permission of the mining right of light under the guidelines are satisfied, but it is necessary to conduct an on-site investigation to verify facts.

(D) Therefore, the instant disposition that did not undergo a field investigation on the application area is unlawful.

(3) Sub-determination

The instant disposition should be revoked as it appears to be any mother or illegal.

3. Conclusion

The plaintiff's claim shall be accepted, and the costs of lawsuit shall be borne by the losing defendant.

The presiding judge and the associate judge;

Judge Han Han-han

Judges Kim Gi-tae

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.