(영문) 서울고등법원 2020.7.2. 선고 2020누34904 판결

On April 12, 2018, the Defendant filed a lawsuit against the Defendant seeking the payment of KRW 30,00,000 for compensation for losses and delay damages against the Defendant on December 20, 2018 (the part of the first instance court dismissing the Plaintiff’s objection against the Defendant on December 20, 2018 concerning the Plaintiff’s natural environment conservation project (B ecological landscape conservation project) and the part of the first instance court’s dismissal of the Plaintiff’s objection against the Plaintiff on April 12, 2018 regarding the Plaintiff’s natural environment conservation project (B ecological landscape conservation project) and the part of the first instance court’s dismissal of the claim against the Defendant on April 12, 2018, which was rejected by the joint Defendant and the first instance court’s dismissal of the claim against the Defendant on December 20, 2018, and the part of the first instance court’s dismissal of the appeal against the Defendant’s joint Defendant on December 20, 2018.

Reasons

1. Quotation of the first instance judgment

The reasoning for this Court regarding this case is as follows, and the reasoning for this Court is stated in the judgment of the first instance except for the additional decision as stated in Paragraph 2 below. Thus, this Court shall accept it in accordance with Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

○ Heading 7, 5, 5, 8, 11, 12, 16, 19, 6, 5 through 6, 7, 5, 14, 16, 8, 21, 22, 9, 14, 10, 14, 10, 12, 14, 14, 12, 7, 7, 7, 5, 7, 5, 5, 7, 7, 7, 14, 7, 7, and 7, 7, 14, 16, 8, and 8, 222, 9, and 14, respectively.

In the first instance court's text, "Defendant Committee" in the first instance court's 6th, third, 10, 7th, 9th, 18th, 19, 23, 26th, 13th, and 15th, shall be "Defendant Committee" respectively.

The defendant's "the Republic of Korea" in the 7th to 5th of the first instance judgment is respectively advanced as "the co-defendant of the first instance court".

○○ The co-defendants of the first instance judgment, the 7th, the 10th, the 8th, the 10th, and the 13th, the 14th, respectively.

(2) On March 2012, 201, the Plaintiff had no separate change in the form and quality of the land to be used for the above extraction business. However, the Plaintiff’s extraction activities are not subject to restrictions under Article 15(1)2 of the Natural Environment Conservation Act, and the Plaintiff’s application for permission for temporary use of the existing access road and permission for use of state forests for the purpose of distributing mined minerals is not subject to restriction under Article 15(1)2 of the same Act. The Plaintiff’s application for permission for temporary use of the existing access road and the existing access road for the purpose of using the 20th square meters on the 20th square meters of land (see, e.g., Supreme Court Decision 200Du1420, Sept. 27, 2016). The Plaintiff’s application for permission for use of the existing access road for the purpose of using the 20th square meters of land on the 20th square meters of land, which appears to be subject to restrictions under Article 15(5) of the National Forest Act.

Article 27 (2) of the Management of Mountainous Districts Act provides that "No person shall enter into a sales contract or obtain permission to collect earth or stone in accordance with the following classification: Provided, That this shall not apply to cases of collecting stone, among minerals, only because it is a mineral under the Mining Industry Act, and it does not constitute a stone or earth or stone under subparagraphs 4 and 5 of Article 2 of the Management of Mountainous Districts Act. However, since Article 27 (2) of the Mountainous Districts Act provides that "if a extracting right holder or mining concession holder who has obtained authorization for a mining plan, in order to extract minerals under the Mining Industry Act, intends to collect earth or stone, including such minerals, for use or sale for purposes other than mining, from the authorized mining area, it is reasonable to conclude that it does not constitute a stone under the Management of Mountainous Districts Act solely on the ground that it is a mineral under the Mining Industry Act (Article 2 subparagraph 4 of the Mountainous Districts Management Act refers to a stone for construction, craft, landscaping, or stone for use in the same mountainous district."

○ On the 13th page of the first instance judgment, the following shall be added.

“5) As seen earlier, on February 12, 2014, the Plaintiff filed an application with the director of the Ulsan National Forest Management Office for permission to temporarily use state forests and mountainous districts with respect to 1,541m2, out of 27,220,547m of Rain-gun, Ulsan-gun, Ulsan-do for the purpose of developing mix mine and mine based on each of the extracting rights in the instant case. According to the evidence evidence Nos. 4, 5, and 12, the director of the Ulsan National Forest Management Office issued a disposition to reject the said application on March 13, 2014 for the following reasons.

In accordance with Article 17 (1) 1 of the Enforcement Decree of the Management and Management of State Forests Act (hereinafter “State Forest Act”), permission for use for state forests for which a plan for use has been determined pursuant to subparagraph 1 of Article 17 (1) of the Enforcement Decree of the State Forest Act - Where permission for use is not granted based on the administrative property (non-permanent state forest management office-739 (24 February 24, 2014), the lower part of the application site for use for state forest management plan was established (120-0-1-0) pursuant to Article 8 of the State Forest Act, and the permission for use for diversary mines at the bottom of the application site for use for state forest management (120-1-0) or mountainous district restoration (20-739 (1) of the Ulsan State Forest Management Office-739 (2014)) or the permission for use within a isolated forest under the Natural Environment Conservation Act (hereinafter “State Forest Act”), it is difficult for the Plaintiff to claim the above permission for use of state forests from the first instance and the first instance.

2. Additional determination

A. The plaintiff's assertion

The facilities of forest roads under Article 9 of the Creation and Management of Forest Resources Act include “development projects implemented” under Articles 53(1) and 15(5) of the Natural Environment Conservation Act and Article 16(1)1 of the Enforcement Decree of the same Act. For the development of the mine, the Plaintiff made a warehouse and powder yard, equipment storage, etc. for the development of the mine. The Plaintiff, up to the extraction site, opened access roads at a length of about 4.5 meters and spreads turfs, and laid underground drainage pipes. The facilities installed by the Plaintiff are those of forest roads, and thus constitutes “development projects implemented.” Accordingly, the Defendant, who restored to the original state, should compensate for the damages therefrom.

B. Determination

As seen earlier, the part of the Plaintiff’s assertion that the Plaintiff was unable to conduct mining activities based on each of the extracting rights of this case due to the notification of the Minister of Environment of the first instance co-defendants of the Republic of Korea cannot accept the part of the Plaintiff’s assertion that the Plaintiff lost the extracting rights (or the Plaintiff’s assertion that each of the extracting rights of this case was restricted due to the notification of this case, even if the Plaintiff’s restriction on the extraction activities based on each of the extracting rights of this case was made due to the notification of this case, its legal ground is deemed to be the same as that of Article 15(1)2 of the Natural Environment Conservation Act), and this part of the Plaintiff’s assertion is erroneous. In addition, according to Article 2 subparag. 1(d) of the Creation and Management of Forest Resources Act, “road constructed for the management and management of forest roads” means “road for the management and administration of forest trees.

3. Conclusion

Therefore, the judgment of the first instance court is justifiable, and the plaintiff's appeal is dismissed as it is without merit.