(영문) 대전지방법원 2015.9.16. 선고 2014구합3589 판결

On June 25, 2014, the Defendant’s revocation of extracting rights and revocation of registration of extinction against the Plaintiff shall be revoked.

Reasons

1. Details of the disposition;

A. On January 3, 2014, the Plaintiff entered into a contract with Sung Chang Industrial Development Co., Ltd., B, and C on the purchase price for the extraction rights (hereinafter “the extraction rights of this case”) under which the period of existence was extended and registered on January 22, 1988, and the term of existence has been extended and purchased as KRW 1 million, and completed the registration of ownership transfer on the same day.

A person shall be appointed.

B. On June 25, 2014, the Defendant: (a) revoked the extraction right of this case by applying Article 35(2)6 of the Mining Industry Act (hereinafter “the instant disposition”); and (b) registered the extinction of the extraction right of this case ex officio on the same day, on the ground that the Plaintiff continued to resume the cremation for at least one year without obtaining authorization from the Minister of Trade, Industry and Energy pursuant to Article 42-2(2) of the Mining Industry Act.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 and 2, the purport of the whole pleadings

2. Ex officio of the part seeking revocation of the registration of the termination of extracting rights among the lawsuits in this case, the part seeking revocation of the registration of the termination of extracting rights among the lawsuits in this case is lawful, and the plaintiff's claim for this part is a result of claiming revocation of the cancellation of the registration under the Mining Registration Decree, i.e., cancellation of the cancellation of the registration under the Mining Registration Act, and is ultimately seeking administrative benefits to an administrative agency (see Supreme Court Decision 65Nu145, Apr. 6, 196). As such, a lawsuit seeking execution order to an administrative agency to issue a certain administrative disposition is not allowed under the current Administrative Litigation Act (see, e.g., Supreme Court Decision 97Nu3200, Sept. 30, 197). The part seeking revocation of the registration of the extraction rights in this case

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

(i) procedural defects;

The plaintiff was only signed without any statement of opinion by the public official in charge of the defendant's public official in the civil petition waiting room, without a specific explanation, in a state where the hearing is well disseminated. Thus, the disposition of this case is unlawful because the procedural defect in which the hearing procedure is not properly conducted.

2) A deviation from or abuse of discretionary power

A) The instant disposition, in violation of the principle of proportionality, was taken after the Plaintiff acquired the extraction right of this case against the head of the budget of the growth industry development company, without knowledge of whether the instant extracting right had been filed against the head of the budget, and was in progress in the process of extraction, such as filing an application for permission for the act of protecting fishery resources and designing the extraction. Accordingly, the instant disposition goes against the principle of proportionality due to the Plaintiff’s economic disadvantage compared to the public interest, such as reasonable development of mineral resources

B) The term of the extraction right of this case was up to December 31, 2015. The Defendant registered transfer without notifying the Plaintiff that the extraction right of this case would be cancelled. The head of the Gun demanded the Plaintiff to supplement documents related to the application for permission for the act of protecting fishery resources. The Plaintiff invested expenses and efforts for extraction by reliance on the duration of the extraction right, the act of the Defendant and the head of the Gun, etc., and the Plaintiff’s trust should be protected.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) As to the assertion of procedural defect

According to the overall purport of the evidence Nos. 4, 5, and 7 and the whole arguments, the plaintiff was present at the defendant's office on May 27, 2014 and participated in the hearing procedure. The plaintiff can be acknowledged that the plaintiff submitted the receipt of the above permit for the above act while he stated his opinion that he suspended the cancellation because he was based on the reason and real name of the disposition of this case from the person who was named in the process of the hearing and requested the head of the budget office to permit the act of protecting fishery resources. Thus, the plaintiff's assertion that the hearing procedure was not properly implemented is not accepted.

2) As to the assertion of deviation and abuse of discretionary power

A) Facts of recognition

(1) On December 5, 2007, Sung Chang Industrial Development Co., Ltd., B, and C completed the registration of the transfer of ownership of the extracting rights, and the period when the production report was submitted was around September 2008. Lastly, the period when the production report was submitted was around September 2008. (2) The Sung Chang Chang Industrial Development Co., Ltd. filed an application for permission to engage in the act of protecting fishery resources with regard to the location of the extracting rights of this case with regard to the budget head, but the head of the Gun rendered a non-permission disposition in accordance with the consent of the Geum River Basin Environment Office on December 30, 201.

The name of the business: The location of an application for permission to engage in the act of protecting fishery resources of G reservoir (F) : The size of 47,500 square meters (the collection place: 37,500 square meters + the size of 10,000 square meters + the selection and camping place: 10,000 square meters) of the applied area; the purpose of the development of mines (F gold collection) and by-products ( sand, gravel) and the extraction of by-products (the sand, gravel).

(3) On January 20, 2012, the Defendant: (a) filed a lawsuit against the head of Daejeon District Court 2012Guhap517 on January 27, 2012 seeking revocation of the above non-permission; (b) on May 23, 2013, the Daejeon District Court 2012 Daejeon High Court 201Nu3109 Decided May 23, 2013, and (c) notified the head of the budget or Gun of the revocation of the revocation of the extraction right by taking into account that the Defendant applied for revocation of the permission to engage in water resource protection zone; and (d) on September 12, 2013, the Defendant received notification of the revocation of the extraction right to the head of Daejeon District Court 2013Du12065, Sept. 12, 2013; and (c) the Defendant received notification of the revocation of the revocation of the extraction right by the closing date of the lawsuit from the appellate court 2013.

(6) On January 3, 2014, the Plaintiff succeeded to the rights and obligations of Sung Chang Industrial Development Company, B, and C as a extracting right holder pursuant to Article 6 of the Mining Industry Act, following the registration of the transfer of ownership of the extracting rights of this case.

(7) On May 26, 2014, the Plaintiff filed an application with the head of budget Gun for permission to engage in activities for fishery resources protection zones by stating the location, size, and purpose of development activities identical to the application for the transfer of Sung Changsan Industry Development Co., Ltd. with respect to the location of the extraction rights of this case. The Plaintiff submitted the details of the plan to engage in the mining business (by-products collection) prepared at the time of the application for the transfer of the said right

(8) On June 16, 2014, 2014, 5, and 29, the head of the Gun demanded the Plaintiff to supplement the mining project plan, construction design plan, environmental pollution, and damage prevention plan by June 16, 2014. The period of the request for supplementation was extended twice by July 31, 2014, but the Plaintiff voluntarily withdrawn the application for the permission for the said act with respect to the head of the Gun on July 29, 2014.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1, 3, 5, 6, 7 (including each number, if any), Eul evidence Nos. 1, 2, and 3, and the purport of the whole pleadings

B) With respect to the assertion of violation of the principle of proportionality, permission for the establishment of mining rights is an administrative act granting mining rights for minerals that are not mined by the State, and such permission may be revoked for the sake of public interest even after permission has been granted, as well as permission may be revoked even if extraction has been discontinued for a certain period without commencement of mining or for a certain period of time. As mineral resources are the basic resources used as the foundation of the industry, which have a substantial impact on the national economy, on the national economy, on the national land, and have a limited organization on the national land, it is necessary for the State to establish mining rights under the state’s involvement, and once the establishment of mining rights is established, it is necessary to induce the development of mineral resources that belong to the same purpose. The revocation of mining rights is intended to promptly adjust idle mining rights by holding mining rights under the name of the mineral resources for which the establishment of mining rights has been registered for a long period of time without developing mineral resources (see, e.g., Supreme Court Decision 9Du2871, May 25, 1999).

In light of the purport of the system revoking mining rights as above, the health care provider who abused the disposition of this case in violation of the principle of proportionality, and the facts revealed from the above recognition. In other words, ① the Plaintiff purchased the extraction right of this case for which the disposition of this case was suspended after the closure judgment of the company was finalized, and succeeded to the status of the Sung Chang Industrial Development Co., Ltd. by transferring ownership; ② the Plaintiff filed an application for the same contents as the application for the transfer of the Sung Chang Industrial Development Co., Ltd. upon filing an application for permission to engage in fishery resources protection area with the head of the Gun, submitted the design statement before the Sung Chang Chang Industrial Development Co., Ltd.; ③ the lawsuit seeking non-permission to transfer the permission of Sung Chang Industrial Development Co., Ltd. becomes final and conclusive in the Supreme Court judgment against the Supreme Court judgment, the Plaintiff’s act, the same content of which is the same, shall be deemed to have been decided by non-permission disposition; and the Plaintiff has already withdrawn the permission of this case, it is difficult to deem the disposition of this case to violate the principle of proportionality, such as significantly necessary for public interest.

C) According to Articles 35 and 42-2 of the Mining Industry Act, with respect to the assertion of violation of self-determination and trust protection principle, if the extraction is suspended for one year or more without authorization of the competent authority even during the term of the extraction rights, the extraction is still in progress, even if the authorization under other Acts and subordinate statutes is still in progress.

However, the extraction right can be revoked unless there is production or investment record (see Supreme Court Decision 96Nu10102, Sept. 9, 197). ② Article 27 of the Mining Registration Decree, which provides for the reason for the defendant to refuse to accept an application for registration, stipulates only formal matters, such as where the case is not registered. Accordingly, it is recognized only as formal review authority, and substantial contents review authority is not recognized. Accordingly, the registration officer cannot refuse the application for registration of transfer of ownership of the above extraction right because the registration officer can not refuse the application for registration of transfer of ownership of the above extraction right, and the 3 budget head is not an administrative agency with the authority to revoke the above extraction right and requests supplementation of documents necessary for examination of the plaintiff's application for permission of act of fishery resources protection zone regardless of whether it is revoked. In light of the above, the term of the above extraction right of this case does not mean the period for which the cancellation is restricted, and the budget act of the defendant and the head of the Gun does not violate the principle of self-reliance or protection.

4. Conclusion

As such, the part of the lawsuit in this case concerning the revocation of the registration of the extinguishment of extracting rights is unlawful, and the remaining claims of the plaintiff are dismissed as without merit. It is so decided as per Disposition.