(영문) 서울행정법원 2012.11.1.선고 2012구합19267 판결

On July 7, 2011, the defendant revoked the disposition rejecting the claim for purchase of a mining right against the plaintiff A (the defendant's above disposition in the record is clear that it was made against the plaintiff A, and it is reasonable to see that "the plaintiff among the claims stated in the complaint is a clerical error in the plaintiff A).

Reasons

1. Details of the disposition;

A. On December 28, 2001, the Minister of Oceans and Fisheries designated the coastal wetlands located in the Donan-gun, Chungcheongnam-gun, the Ministry of Oceans and Fisheries as the Ewetland protection area (hereinafter referred to as the "wetland protection area in this case"). The mining right (hereinafter referred to as the "mining right in this case") located in the Donan-gun, Y-nam-gun, the non-party F of the said wetlands protection area was incorporated into the registration number G (mining land H), I (mining land register), and K (mining land register), located in the Donan-gun, the non-party M and the plaintiff B (hereinafter referred to as the "each of the mining rights in this case"). On January 11, 2002, the plaintiff jointly purchased each of the mining rights in this case, and the above M, the joint mining right holder, died on March 18, 2008, was registered as the ground of death on February 18, 2010.

C. On December 9, 2009, Plaintiff A recommended the purchase of each of the mining rights of this case incorporated into the wetlands protection area in the name of the deceased M, and on December 23, 2009, the Uanan-gun respondeded to the purport that on the network M, each of the mining rights of this case was judged to be purchased in the wetlands protection area, but it is a plan to proceed with compensation procedures after consultation with the Ministry of Land, Transport and Maritime Affairs, such as securing the required budget, because it is somewhat difficult to evaluate and secure the budget.

D. On February 5, 2010, the head of the Gun requested N Company and P Company P to appraise the mining area within the wetlands protection area regardless of the land portion of each of the instant mining rights, and the assessed amount for the portion excluding the land portion of each of the instant mining rights was calculated as KRW 158,56,50 (the average amount of two companies).

E. On June 28, 2011, pursuant to Article 20-2 of the Wetlands Protection Act, Plaintiff A filed a claim with the Defendant for purchase of a mining area within the wetlands protection area (hereinafter “instant application for purchase”) with the exception of land parts among each of the instant mining rights (hereinafter “instant application”).

F. On July 7, 201, the Defendant rejected the instant application for purchase on the ground that, after the designation of a wetlands protection area, the Plaintiff was found to have been engaged in the production of minerals (high soil) in the part on land of the pertinent mining area twice (1,319 tons, 8,000 tons, 205) after the designation of a wetlands protection area, and that the said Plaintiff obtained a right through sale on January 1, 2010 and May, 201, it cannot be determined that there was property damage due to the reasons such as restriction on the act in the E Wetlands Protection Area designated and publicly notified earlier (hereinafter referred to as the “instant rejection disposition”).

G. Accordingly, on July 13, 201, Plaintiff A urged the Defendant to accept the request for the purchase of the tea mining right, the Defendant, on July 14, 201, sent a reply to the effect that, on the grounds that the mining of minerals in the public waters was permitted under Article 8(1)10 of the Public Waters Management and Reclamation Act, the part requesting purchase among the mining rights in the instant case was limited to mineral extraction even before the designation of the wetlands protection area, and that, as long as the wetlands protection area had already been designated and publicly announced before the acquisition of each of the mining rights in the instant case due to trade, the Plaintiff’s claim for purchase was not possible.

H. On August 11, 201, Plaintiff A filed an administrative appeal with the Central Administrative Appeals Commission seeking revocation of the instant refusal disposition, and the Central Administrative Appeals Commission dismissed the said Plaintiff’s claim on February 28, 2012.

I. Meanwhile, on January 10, 1996, Non-party Q Q Co., Ltd. obtained an amendment to mining plan for each of the mining rights of the instant case from the Rado governor on February 10, 2003, and Non-party Qu Co., Ltd. obtained an amendment to mining plan for each of the mining rights of the instant case from the Rado governor on February 10, 2003. The mining rights of the instant RR mines and S Mining are farmland as follows.

A person shall be appointed.

(j) On January 26, 2012, Jeonnam-do responded to the Defendant’s above mining plan modification agreement, on January 26, 2012, to the effect that, as the mining land of each of the above mines was dealt with only with permission for temporary use of farmland pursuant to the Farmland Act, and that, as the place of application is the response, the possession of public waters was not deemed as being treated, and that, as the place of application is the place of application, it was not deemed that there was no request for consultation on permission for occupation and use of public waters at the time of changing the above mining plan modification.

[Ground for Recognition: Facts without dispute, Gap evidence 1 through 7, evidence 10 through 12, Eul evidence 1 through 5 (including paper numbers), the purport of the whole pleadings]

2. Whether the disposition is lawful;

A. The plaintiffs' assertion

Some of the mining rights of this case owned by the plaintiffs were incorporated into wetlands protection areas, thereby causing losses which the plaintiffs cannot mine minerals pursuant to Article 13(1)4 of the Wetlands Conservation Act.

Therefore, the plaintiffs, as joint mining right holders, have the right to request the defendant to purchase part of each of the mining rights in this case incorporated into the wetlands Conservation Area pursuant to Article 20-2 (1) of the Wetlands Conservation Act, and the defendant shall not refuse to reject the request unless there is any justifiable reason. However, the defendant issued the instant disposition of refusal on the ground that there is no financial loss to the plaintiffs. This is contrary to the opinion of the head of the Gun and thus constitutes an infringement on the plaintiffs' trust. Therefore, the instant disposition of refusal constitutes an unlawful act (in the case of joint ownership under the provisions of Articles 30 (1) and 17 (5) of the Mining Industry Act, since the form of ownership is a combination, the lawsuit concerning joint mining rights shall be deemed a requisite co-litigation which needs to be confirmed on the date of combination, and this shall also apply to an appeal litigation concerning the application for the purchase of joint mining rights (see Supreme Court Decision 63Nu158, Mar. 31, 1964).

(b) Related statutes;

The entries in the attached Table shall be as follows.

C. Determination

(1) According to Article 20-2(1) of the Wetlands Conservation Act and Article 17-2(2) and (3) of the Enforcement Decree of the same Act, where the owner of a mining right intends to sell it in a wetland protection area, the Minister of Land, Transport and Maritime Affairs may determine whether to purchase it within the limits of the budget for the pertinent year and purchase it. The aforementioned provisions on purchase of the right in the wetlands protection area were newly established on December 26, 202, and this purport is to preserve property rights arising from the designation of the wetlands protection area. In light of the form, contents, and purport of the purchase regulations as seen above, the Minister of Land, Transport and Maritime Affairs, the purchaser counter-party, is not bound by the request of the owner of a mining right, but has discretion to determine whether to purchase it, comprehensively taking into account various circumstances, such as the degree of restriction on property rights and the availability of budget.

(2) As to whether there was a defect in deviation from or abuse of discretionary power in the instant refusal disposition, the following facts revealed in light of the overall purport of the arguments and the facts revealed earlier, namely, ① the Plaintiffs and the Plaintiff’s father M, who was the Plaintiff’s father prior to the acquisition of each of the instant mining rights, shall be deemed to have acquired each of the instant mining rights with the knowledge of the fact that there was a restriction on the act in the part of the instant mining rights, in that both the Plaintiffs and M were designated and publicly announced as a place adjacent to the public waters, and that there was a restriction on the use of each of the instant mining rights ( even though M and the Plaintiff did not have any provision on the purchase of each of the instant mining rights at the time of the initial acquisition of each of the instant mining rights). ② As to the Plaintiff’s request for purchase of this case, even if the Defendant did not comply with the foregoing, it is difficult to deem that new restriction on property rights has occurred or losses have occurred, ③ In light of the fact that the Plaintiff’s purchase of the instant water surface protection area was not necessary for the Plaintiff’s purchase of the wetlands.

Furthermore, considering whether the instant refusal disposition violates the principle of the protection of trust or not, the intent of the head of the Gun, which appears in the request for appraisal by the head of the Gun, response to the recommendation under the name of the deceased M, etc. is difficult to be deemed as a public opinion statement that serves as the basis for the protection of trust, and there is no other evidence to acknowledge it only by the evidence submitted by the plaintiffs.

(3) Therefore, the plaintiffs' assertion is groundless.

3. Conclusion

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