In cases where the cancellation of mining rights has been postponed due to the lack of production records, and the result of prospecting has been approved, a book of cancellation of mining rights due to the grounds for separate cancellation of mining rights (suspension of business for not less than one year

If a third party files an application for mining rights of the same content after the illegal cancellation of mining rights, the revocation of the revocation thereof;

A. The purport of Article 36 subparagraph 2 of the former Mining Industry Act (amended by Act No. 1981, Jan. 29, 1981) and Article 45-2 (2) and (3) of the Enforcement Decree of the former Mining Industry Act (amended by Presidential Decree No. 1980, Aug. 20, 1980) stipulate that the cancellation of mining rights shall be postponed for three years even if the prospecting results are not produced even after three years have elapsed since the date of registration of establishment of mining rights or there is no production report. However, if the prospecting records are recognized by the chief of the power resources department, mining rights can not be revoked for three years or more, even if production records or production reports are not made for three years or more, for other reasons for cancellation of mining rights.

B. If the cancellation disposition of the mining right of this case is unlawful, the plaintiff whose rights and interests are infringed by the defendant can seek the cancellation of the disposition. Since it cannot be said that the cancellation of the illegal disposition is impossible because the third party filed an application for the mining right of the same contents after the cancellation disposition, even if the cancellation disposition of the mining right of this case is illegal, the court below erred in the misapprehension of the judgment that the non-party (A) cannot cancel the illegal disposition unless the non-party (A) newly

Article 36 subparagraph 2 of the former Mining Industry Act (amended by Act No. 36, Jan. 29, 1981); Article 45-2 (A) of the former Enforcement Decree of the Mining Industry Act (amended by Presidential Decree No. 1980, Aug. 20, 1980)

[Defendant-Appellant] Plaintiff 1 et al., Counsel for defendant-appellant

Minister of Power and Resources;

Seoul High Court Decision 81Gu202 delivered on November 19, 1981

The appeal is dismissed.

The costs of appeal shall be borne by the plaintiff.

The plaintiff-appellant's grounds of appeal (the grounds of appeal for the same Article were submitted after the lapse of the period, so the above grounds of appeal are considered to the extent of supplement in case of supplement).

With respect to No. 1:

The mining right of this case was originally owned by the Korea Mining Promotion Corporation, but the plaintiff purchased it and completed the registration of transfer on May 9, 197, but did not commence the business within one year after the registration of transfer, and it was approved from the Gyeonggi-do Governor for one year from February 25, 1978 to February 24, 1979, but continued to commence the business without the authorization of the commencement period or the suspension of the business after the expiration of the authorization period, and it was recognized that the plaintiff continued to suspend the business until August 26, 1980, which violated Article 41 of the former Mining Industry Act (former Act No. 1981, Jan. 29, 1981) since it did not constitute a ground for cancellation of mining right under Article 31 subparagraph 1 of the same Act, the judgment of the court below is just, and there was no violation of the rules of evidence or legal principles as to the establishment of mining right under Article 31 subparagraph 2 of the former Enforcement Decree of the Mining Industry Act, and there was no violation of Article 36(28).

With respect to the second ground:

According to the reasoning of the judgment below, even if the plaintiff violated Article 41 of the former Mining Industry Act, the court below rejected the plaintiff's assertion that the plaintiff's new cancellation of the mining right of this case was unlawful since the non-party's application for the cancellation of the mining right of this case was recognized on August 29, 1980, which was the same kind of mineral as the plaintiff's mining right of this case's cancellation on August 29, 1980 after the cancellation of the plaintiff's mining right of this case, since the plaintiff had faithfully performed the mining safety order with great expenses and had been authorized by the Minister of Power and Resources, and the plaintiff filed an application for the alteration of the mining right of this case on June 12, 1980, which was located within the development restriction zone but was located within the development restriction zone, and the plaintiff's new cancellation of the mining right of this case's cancellation of the mining right of this case's cancellation can not be asserted as unlawful since the non-party's cancellation of the mining right of this case's cancellation can not be asserted.

However, all the facts alleged by the plaintiff, namely, whether the plaintiff complied with the mine safety order or at the time of assertion that the plaintiff filed an application for change of the business plan and the application for change of underground resources development within the development restriction zone, even if all of the circumstances alleged by the plaintiff were met, such reasons alone are not recognized as abuse of discretionary power, since the cancellation of the mining right of this case on the ground that the plaintiff did not start the business for not less than one year after the expiration of the period of suspension of business or for not less than one year without a justifiable reason after the termination of the period of suspension of business, and the above mistake of the court below did not affect the judgment, and it is groundless to criticize the decision of the court below

With respect to the third point:

The issue is on the premise that the cancellation disposition of the mining right of this case was based on the plaintiff's violation of the security order under the Mining Safety Act, but the defendant is not subject to the cancellation disposition of the mining right of this case on the ground that the plaintiff faithfully performed the mine safety order, and therefore, it cannot be accepted to argue that the judgment of the court below is attacked on the ground that the plaintiff faithfully

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jung-soo (Presiding Justice) and Lee Jong-young's Lee Jong-young