(영문) 수원지방법원 2012.6.13. 선고 2011구합14532 판결

On January 25, 2011, the registration revocation and extinguishment registration of the mining right stated in the attached Table 1 List against the Plaintiff shall be revoked.

Reasons

1. Details of the disposition;

A. (1) On November 28, 2003, Boh Private Industrial Co., Ltd. registered the establishment of mining rights (the initial term of mining rights: from November 29, 2003 to November 28, 2010) (the initial term of mining rights: the plaintiff and the representative director) with respect to the mining rights of this case on November 19, 2004, and on May 26, 2008, the registration of the transfer of mining rights was completed on November 18, 2004 for the mining rights of this case, and on May 23, 2008, the industrial company completed the transfer of mining rights for the mining rights of this case on May 26, 2008.

(2) The name of the industrial company was changed to full-time Co., Ltd., and was changed to the plaintiff again. Accordingly, the registration of change in the name of full-time Co., Ltd. and the name of the plaintiff for the mining right of this case was completed in order (hereinafter referred to as "the plaintiff" without distinguishing between full-time and full-time Co., Ltd., Ltd. and the plaintiff).

B. On January 25, 2011, the Defendant issued a disposition to revoke and extinguish the mining right of the instant case pursuant to Article 35 subparag. 1 of the Mining Industry Act (hereinafter “instant disposition”) on the ground that the Plaintiff did not commence business until two years have elapsed since the date of establishment registration of mining right pursuant to Article 40(1) of the former Mining Industry Act (amended by Act No. 9982, Jan. 27, 2010; hereinafter “ Mining Industry Act”).

[Ground of recognition] Facts without dispute, Gap evidence 1-1, 2-2, Gap evidence 2-1, Eul evidence 12-1, Eul evidence 11, Eul evidence 12-12, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The Defendant, on January 17, 201, held the hearing procedure, which was prior to the instant disposition, but was formally conducted without giving the Plaintiff an opportunity to state his opinion, and thus, the Defendant’s disposition of this case without undergoing the hearing procedure is unlawful.

(2) Permission for the establishment of a mining right is a lecture patent, and permission for the extension of the term of a mining right is a new establishment of a mining right because it constitutes the renewal of the term of a mining right. As such, a mining right holder is obligated to perform obligations under the Mining Industry Act, etc. by obtaining permission for the extension of the term of a mining right. The Plaintiff obtained permission for the extension of the term of a mining right of this case from November 29, 2010 to November 28, 2015 from the Defendant and obtained the extension of the term of a mining right of this case on August 31, 2010, which is the registration date of the establishment of a mining right of this case, under Article 40 subparagraph 1 of the Mining Industry Act. Accordingly, the Plaintiff’s registration of the extension of the term of a mining right of this case by registering the extension of the term of a mining right of this case, and thus does not violate the Defendant’s obligation to commence business (mining) within two years from August 31, 2010.

(3) After acquiring the mining right of this case, the Plaintiff invested enormous expenses in order to start mining, but failed to start mining due to the return of the application for authorization for mining plan. The Plaintiff made efforts to start mining by purchasing shot light facilities such as sanddox, construction aggregate sorting machines in order to mine ordinarys in the coastal areas below the public waters instead of the existing plan to mine ordinarys in the part below the public waters. The Plaintiff explained the necessity of dredging to fishermen in the vicinity of the mining right area of this case, which was opposed to the initial mining, and obtained his consent. Thus, the instant disposition at the time when five months have not passed since the Defendant extended the term of mining right of this case without considering the Plaintiff’s efforts or investment records to start mining, etc., was in violation of the principle of protection of trust and discretion.

B. Relevant statutes

Attached Table 2 shall be as stated in the relevant statutes.

C. Determination

(1) As to the Plaintiff’s first argument

According to Articles 96 and 99 subparagraph 2 of the Mining Industry Act and Article 71 (2) subparagraph 23 of the former Enforcement Decree of the Mining Industry Act (amended by Presidential Decree No. 22556, Dec. 28, 2010; hereinafter referred to as "Enforcement Decree of the Mining Industry Act"), the defendant to whom the authority of the Minister of Knowledge Economy with respect to cancellation of mining rights and hearing is delegated shall hold a hearing where the Minister of Knowledge Economy revokes mining rights pursuant to Article 35 of the Mining Industry Act

Comprehensively taking account of the facts stated in Gap evidence Nos. 22 and Eul evidence Nos. 4 through 6 and witness Gap's testimony, ① The judgment dismissing the plaintiff's request on December 9, 2010 against Jeonnam-do Governor, the defendant purchased the plaintiff's request on Dec. 21, 2010 and the plaintiff did not start business within two years from November 28, 2003, which is the date of registration establishment of the mining right of this case, and issued a notice of the hearing on Nov. 17, 201, which was attached to the defendant's registration team's notice of the hearing on Jan. 17, 201, ② The defendant's employees Gap were present on Jan. 17, 201 to the representative director of the representative director who was present on the procedure of hearing on Jan. 17, 201, ③ the plaintiff's opinion on the extension of the plaintiff's mining right's term of existence, ③ the plaintiff's opinion on the extension of the plaintiff's mining right of this case.

According to the above facts, prior to rendering the disposition of this case, the defendant held a hearing pursuant to Article 99 subparagraph 2 of the Mining Industry Act by hearing the plaintiff's defense for the grounds of the disposition of this case and submitting materials favorable to the plaintiff. Thus, the plaintiff's first argument that the hearing procedure is unlawful is without merit.

(2) As to the second argument of the Plaintiff

According to subparagraph 3 of Article 3 and Article 10 (1) of the Mining Industry Act, a mining right shall be the right to mine or acquire registered minerals and other minerals existing in the same mineral deposit in a mining area which is a registered land, and the Mining Industry Act shall be treated as a real right. Pursuant to Articles 15 (1) and 42 (1) of the Mining Industry Act, a person who intends to establish a mining right shall file an application with the Minister of Knowledge Economy, as prescribed by Presidential Decree, and obtain permission therefor from the Minister of Knowledge Economy, as prescribed by Presidential Decree. A mining right holder shall prepare a mining plan before commencement of mining, as prescribed by Presidential Decree, and obtain authorization from the Minister of Knowledge Economy. According to Articles 34, 35 (1) and 40 (1) of the Mining Industry Act and Article 36 (2) of the Enforcement Decree of the Mining Industry Act, the Minister of Knowledge Economy shall issue a disposition of cancellation or reduction of mining rights to the defendant, and a mining right holder shall expire within two years prior to the expiration of the term of mining right under Article 36 (2).

According to the above provisions regarding the establishment and cancellation of mining rights, and extension of the term of mining rights, the Mining Industry Act shall obtain permission for establishment of mining rights, and when a mining right holder intends to commence mining which is the specific exercise of mining rights, the person who intends to obtain permission for establishment of mining rights shall obtain authorization for establishment of mining rights. Permission for establishment of mining rights is an administrative act that grants the State the right to mine and acquire minerals which are not mined to applicants for establishment of mining rights. If the State recognizes that mining is detrimental to public interest even after permission for establishment of mining rights, the administrative agency may cancel the permission, as well as when the mining right holder does not commence mining within a certain period. The term of mining rights is not added by the administrative agency to limit the validity of the permission for establishment of mining rights under the Mining Industry Act itself, but falls under the so-called legal officer that restricts the validity of the permission for establishment of mining rights under the Mining Industry Act itself, and the permission for extension of the term of mining rights does not constitute a new establishment of mining rights or modification of the essential contents of existing mining rights, but merely an extension of the term of mining rights can be extended without expiration.

Therefore, even if the Plaintiff registered on August 31, 201 with the extension permission of the term of the mining right of this case prior to the expiration of the term of the mining right of this case, the registration date of the extension registration of the term of the mining right of this case cannot be deemed as the registration date of the establishment of the mining right of this case, and thus, the Plaintiff’s second argument that

(3) As to the third argument by the Plaintiff

갑 제12호증의 1, 2, 을 제1호증 내지 을 제3호증, 을 제9호증의 각 기재에 변론 전체의 취지를 종합하면, ① 원고가 2008. 11. 17. 전라남도지사에게 이 사건 광업권에 기하여 이 사건 광업권의 광구에서 1차년도에 36,000톤, 2차년도에 36,000톤, 3차년도에 48,000톤의 규사를 채굴하기 위한 채광계획 인가신청을 한 사실, ② 전라남도지사는 2008. 11. 20. 영광군수에게 전남 영광군 백수읍 대신리 산 270 지선(해안일대) 공유수면 28,000m의 점용 및 사용에 관한 협의를 요청하였는데, 영광군수는 2008. 12. 22. 전라남도지사에게 '전남 영광군 백수읍 대신리 산 270 지선(해안일대) 주변 해역에 수산자원 조성을 위하여 1998년부터 2008년까지 11년에 걸쳐 2,377,000,000원의 예산을 투자하여 새우 등 15개 어종에 대하여 종묘 440,687,000미를 방류하는 등 칠산어장 활성화와 어업인들의 소득증대에 심혈을 기울이고 있고, 원고의 채광계획 인가신청은 바 다생태계 파괴 및 어패류 서식처 상실 우려, 수산자원 보호와 해양생태계 보호를 위해 2005. 11. 28., 2007. 1. 10., 2008. 1. 30. 점용 및 사용허가 불협의 의견을 제출한 적이 있는 것과 같은 내용의 반복 민원이라는 등의 이유로 공유수면 점용 및 사용에 대해 불협의한다'는 취지의 의견을 제시한 사실, ③ 전라남도지사는 2008. 12. 24. 원고에 대하여 '영광군수로부터 위와 같은 사유로 공유수면 점용 및 사용허가에 대하여 불허의견이 제시되었다'는 이유로 원고의 채광계획인가신청을 반려하는 처분을 한 사실, ④ 원고는 2009. 3. 20. 전라남도지사를 상대로 광주지방법원 2009구합1129호로 채광계획인가신청서 반려처분의 취소를 구하는 소를 제기하였으나, 위 법원은 2010. 1. 14. 원고의 청구를 기각하였고, 원고가 위 판결에 대하여 광주고등법원 2010-275호로 항소하였으나, 2010. 9. 9. 원고의 항소가 기각되었으며, 원고가 다시 대법원 2010두21143호로 상고하였으나, 2010. 12. 9. 원고의 상고가 기각된 사실(이하 원고가 제기한 채광계획인가신청서 반려처분취소소송을 '선행 소송'이라고 한다). ⑤ 주식회사 수민산업은 전라남도지사로부터 2005. 12. 12.부터 2006. 12. 11.까지를 유예기간으로 하여 사업시작유예인가를 받았고, 원고는 전라남도지사로부터 2007. 1. 24.부터 2008. 1. 23.까지, 2008. 2. 14.부터 2009. 2. 13.까지를 유예기간으로 하여 사업시작유예인가를 각 받은 사실, ⑥ 피고는 원고가 이 사건 광업권의 설정 등록일인 2003. 11. 28.부터 2년 이내에 사업(채광)을 시작하지 아니하였다는 이유로 이 사건 광업권의 등록취소처분을 하려고 하였으나, 원고가 위와 같이 선행소송을 제기하자 2009. 3. 27. 원고에 대하여 선행소송이 확정될 때까지 이 사건 광업권의 등록취소처분을 유예한다고 통보한 사실, ⑦ 이후 선행소송에서 원고의 청구가 기각되는 판결이 확정되자, 피고가 이 사건 처분을 한 사실을 인정할 수 있다.

In light of the following circumstances acknowledged as the above facts and the interpretation of the relevant Acts and subordinate statutes: ① after the establishment registration of the mining right of this case was completed on November 28, 2003, the mining right holder, including the plaintiff, including the plaintiff, obtained authorization for the commencement of mining works from December 12, 2005 to February 13, 2009, and did not commence mining due to the non-authorization of the mining plan; and there are no special circumstances to justify that the mining right holder including the plaintiff, etc. failed to commence mining works based on the mining right of this case within the period of commencement of operations under Article 40(1) of the Mining Industry Act; the defendant tried to suspend the registration of the mining right of this case against the plaintiff until the prior lawsuit becomes final and conclusive; on the other hand, the ground that the mining right of this case, which was already used as the foundation of industry, has a significant impact on the national economy and has limited land, so that the plaintiff is not obliged to establish the mining right of this case for the purpose of Article 15 of the Mining Industry Act.

Therefore, the disposition of this case is in violation of the principle of protection of trust or deviation from discretionary power. The third argument of the plaintiff is without merit.

D. Sub-committee

The defendant's disposition of this case is legitimate.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.