Non-permission and waiver of discretionary authority for the deforestation of damaged trees

Since the deforestation of damaged trees does not obstruct the objective of the designation of a reserved forest for proper accumulation and maintenance, the non-permission for the deforestation of damaged trees on the ground that the forest main water in the reserved forest zone falls short of the standard is illegal by deviating from the discretion range.

Article 62 of the Forestry Act, Article 1 of the Administrative Litigation Act

Plaintiff

Young Gun

Seoul High Court Decision 82Gu405 delivered on July 14, 1983

The part of the judgment of the court below against the plaintiff regarding the information on reserved forest 78.2, among the forest land ( Address 1 omitted) in Yeongdeungpo-gu, Gangwon-do ( Address 1 omitted), 9.26 and ( Address 2 omitted), shall be reversed, and the case shall be remanded to the Seoul High Court.

The remaining grounds of appeal by the plaintiff are dismissed, and the costs of appeal by the dismissed appeal are assessed against the plaintiff.

1. The plaintiff's first ground for appeal is examined.

(1) According to the reasoning of the judgment below, with respect to the Defendant’s disposition of non-permission as of February 8, 1982 by the Plaintiff, the lower court accepted the Defendant’s assertion that the Defendant’s felling of trees would obstruct the purpose of designation as a reserved forest, and that the Defendant’s felling of trees would interfere with the purpose of designation as a reserved forest if the Defendant permitted felling of trees on the ground that the average 78.2 information out of the ( Address 1 omitted) forest information 157.02 information and ( Address 2 omitted) forest information 340.64 information among the said forest land is designated as a scenic preservation forest.

(2) According to the records, the court below, as alleged by the defendant, found that the grounds for recognizing the franchising water in each of the above reserved areas are mainly the statements in Eul evidence 4-1, 3, and 4 (Report of Investigation) and the testimony of non-party 1 by the witness of the court below. According to each of the above evidence, the defendant military forests and the non-party 1 and the non-party 2, who are public officials, directly selected the reference land in each of the reserved forest areas in each of the above forest areas and directly investigate and confirm such franchising

However, according to the records, examining the business trip statement and investigation report (No. 4-1 and No. 2) prepared by the above public officials, it is acknowledged that the average forest tree capital is also a reserved forest with respect to the forest land not designated as a reserved forest, and the fact of investigating and verifying the relevant average forest tree capital is acknowledged, and according to the evidence No. 11-1 and No. 18-1, which is a public document, the above public document is designated and announced as a reserved forest under the drawings for the forest area among the above (No. 1 omitted) and (No. 2 omitted), but the district boundary mark has not yet been made too far. In light of the above facts, since there is doubt as to whether the above public officials confirmed the forest area among the above forests, and investigated the forest tree water within the said area, the court below should have determined the probative value after checking which point within the forest area designated as a reserved forest among the above forests.

In this respect, the judgment of the court below is erroneous in the judgment of value of evidence due to incomplete deliberation and it is reasonable to discuss this issue.

(3) In addition, according to the records, it is clear that the Plaintiff’s application for permission to cut down pine trees of this case is subject not only to sending and collecting trees, but also to damaged trees. According to the guidelines for managing reserved forests under the evidence No. 23 (Direction. Established Rules) of the Plaintiff, it is recognized that felling in a reserved forest is in principle selective cutting work and maintaining an adequate stable scale, thereby achieving the designation purpose of the reserved forest, and that various damaged trees and obstacles felling are excluded. Accordingly, the felling of damaged trees does not interfere with the purpose of designating the reserved forest, which is to maintain a proper stable maintenance.

Thus, the defendant's refusal of the felling of damaged trees on the ground that the average tree tree tree production in the forest reserve zone falls short of the standard does not constitute an unfair disposal that deviates from the scope of discretion. Thus, the court below erred by misapprehending the legal principles on the purpose of preserving the forest reserve and the scope of discretion for permission for felling trees, thereby affecting the conclusion of the judgment. Thus, the court below's decision on this point is justified.

2. We examine the second ground for appeal.

The judgment of the court below is justified on the ground that the plaintiff purchased the active tree 358 meters listed in the above ( Address 5 omitted) forest from the non-party interest company on the ground that there is no evidence to deem that the plaintiff purchased the active tree 358 meters listed in the above ( Address 5 omitted), and thus, the defendant's disposition of denying the felling of the above active tree is justified. In light of the records, the judgment below's reasoning of the judgment below is without merit because it is insufficient to find the plaintiff's active tree 15 as evidence to prove the plaintiff's purchase of active tree.

3. Therefore, of the judgment of the court below, the part against the plaintiff as to the information on reserved forest 78.2 among forest land 9.26 information and ( Address 2 omitted) from among forest land in Yeongdeungpo-gun, Gangwon-do ( Address 1 omitted), shall be reversed, and this part of the case shall be remanded to the court below for further proceedings consistent with this Opinion, and the remaining appeal shall be dismissed, and the costs of the appeal shall be assessed against the losing party by the assent of all participating judges.

Justices Lee Lee Sung-soo (Presiding Justice)