Whether Article 90-2 (6) 3 of the former Forestry Act explicitly states "the possibility of disaster, etc. is likely to occur" as a basis for determining the validity of quarrying permission violates the principle of excessive prohibition under the Constitution (negative)

Article 90-2 (6) 3 of the former Forestry Act (amended by Act No. 6841 of Dec. 30, 2002) specifies "disaster occurrence concern, etc." as a basis for determining the validity of quarrying permission in the text of the Act. The term "disaster concern, etc." refers to cases where a disaster is likely to occur due to quarrying or a need for public interest corresponding thereto is established in light of the legislative purpose of the same Act that intends to contribute to preserving national land by protecting and fostering forests, promoting public interests of forests, etc., and the contents of restrictions on quarrying permission under subparagraphs of Article 90-2 (6) of the same Act, and their mutual relation, etc.

Article 90-2 (6) 3 of the former Forestry Act (amended by Act No. 6841 of Dec. 30, 2002)

Sungam Co., Ltd. (Attorney Seo-hee et al., Counsel for the defendant-appellant)

Budget Gun (Attorney Lee Dong-chul, Counsel for defendant-appellant)

Daejeon High Court Decision 2003Nu900 delivered on June 3, 2004

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

1. As to the assertion that Article 90-2 (6) 3 of the former Forestry Act (amended by Act No. 6841 of Dec. 30, 2002; hereinafter referred to as the "Act") is unconstitutional

Article 90-2 (1) of the Act provides that a person who intends to extract or gather stone in a forest shall obtain quarrying permission from the head of the Si/Gun as prescribed by Ordinance of the Ministry of Agriculture and Forestry, and the head of the Si/Gun shall not grant quarrying permission if he falls under any of the following subparagraphs in granting quarrying permission, and subparagraph 3 (hereinafter referred to as "the provision of this case") stipulates that permission shall not be granted in cases where quarrying permission is not granted, and that permission shall be deemed inappropriate as a result of on-site investigations and gathering residents' opinions as prescribed by Ordinance of the Ministry of Agriculture and Forestry.

In light of the legislative purpose of the Act that intends to contribute to the preservation of national land by promoting the protection and development of forests, the enhancement of forest functions, etc., and the mutual relation between the grounds for restrictions on quarrying permission under the subparagraphs of Article 90-2(6) of the Act, it is interpreted that the instant provision is a case where a disaster is likely to occur due to quarrying or is necessary for public interest corresponding thereto. Thus, it cannot be deemed that the instant provision is completely committed to the decision of the administrative agency without setting the criteria or scope for determining the validity of quarrying permission, and it cannot be deemed that the relevant provision is unclear, and it cannot be deemed that the administrative agency provides that it may refuse quarrying permission for reasons other than public interest. Thus, it cannot be deemed that the excessive prohibition principle under the Constitution is violated.

The ground of appeal on this point is without merit.

2. As to the assertion of mistake of facts and misapprehension of legal principles

According to the reasoning of the judgment below, the court below acknowledged the facts of the judgment after compiling the evidence, and determined that the disposition of this case, which rejected the plaintiff's request for quarrying permission, is a normal part of 347,108 square meters of forest land and 347,108 square meters of forest land and 347,108 square meters (hereinafter "the application site of this case"), which is worth preserving the natural landscape along with the Taesan Do Park area. The location and surrounding environment of the application site of this case and damage caused by nearby Quarrying, etc., the court below did not err in the disposition of this case since it is highly necessary for the plaintiff to preserve the natural environment and ensure a peaceful residential and living environment for neighboring residents, etc.

Although some of the judgment below's explanation is not appropriate, the court below's conclusion that the disposition of this case is legitimate is just, and there is no error of law by misunderstanding of facts against the rules of evidence and misunderstanding of legal principles as to deviation and abuse of discretionary power in the rejection disposition of quarrying permission, as otherwise alleged in the grounds of appeal.

The ground of appeal on this point is without merit.

3. Conclusion

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 Shin Hyun-chul (Presiding Justice)