[1] The purport of the restriction on mining under Article 48 (1) of the Mining Industry Act, and whether a mining right holder may seek compensation for damages arising from the restriction on mining under the above provision (negative)

[2] The case holding that even if the mining right holder was subjected to restrictions on mining under Article 48 (1) of the Mining Industry Act by laying underground water pipes which include part of the mining right while running a wide-area waterworks project, the Korea Water Resources Corporation does not have any obligation to compensate for losses to the Korea Water Resources Corporation, and therefore, it does not constitute tort by laying a water pipe without compensation for losses, thereby resulting in the restriction on mining under the above provision

[1] Article 48 (1) of the Mining Industry Act / [2] Article 48 (1) of the Mining Industry Act, Article 750 of the Civil Act

Daido Co., Ltd. (Attorney Lee Jong-soo, Counsel for the defendant-appellant)

Korea Water Resources Corporation (Law Firm Seo-Gyeong, Attorneys Jeong Woo et al., Counsel for the plaintiff-appellant)

Busan High Court Decision 2004Na14116 delivered on January 19, 2005

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

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below rejected the defendant's claim for the transfer of mining rights on August 14, 190, 200, the plaintiff's existing mining area was not registered for the first time after the closure of mining rights on October 24, 201, and the third time mining right was registered for part of the mining area on July 16, 202 (hereinafter "the second and third mining rights of this case"), and the defendant's claim for the transfer of mining rights on the ground that the above mining area was not registered for the first time after the closure of mining rights or for the first time under the provisions of the former Mining Industry Act for the purpose of stable use of the area south of the area where it is difficult to secure the source of water intake, and thus, rejected the defendant's claim for the transfer of mining rights on the ground that the above mining area was not registered for the first time after the closure of mining rights by the plaintiff's existing mining area under the provisions of the former Mining Industry Act, and thus, it should be acknowledged that the defendant had no obligation to use the above mining area on the ground for second time.

2. The restriction on mining under Article 48(1) of the Mining Industry Act provides that in order to prevent the occurrence of a situation that impedes the management and operation of public facilities, such as railroads, roads, water supply, canals, ports, rivers, etc., in order to prevent the occurrence of obstacles to the management and operation of buildings, the permission of the competent authorities or the consent of the owners or interested parties shall be obtained in the case of extraction of minerals in the vicinity thereof, and such restriction cannot be said to compel a special sacrifice of property, as it is the minimum limitation incidental to mining rights for public welfare and it is inevitable and inevitable. Therefore, a mining right holder cannot seek compensation for this reason on the ground that he/she suffered losses due to the restriction on mining under Article 48(1) of the Mining Industry Act.

In this case, even if the Plaintiff, a mining right holder of the instant mining right, as the Defendant acquired through consultation or expropriated the relevant land for a wide-area waterworks business and laid a water pipe in part of the mining area of the instant mining right while carrying out the business, was subject to restrictions that could not be mined within the limit of 50 meters above the surface and the ground surface of the water pipe, without the permission of the competent authority or the consent of the owner or interested party under Article 48(1) of the Mining Industry Act, in light of the above legal principles, the Defendant cannot be deemed liable to compensate for the damages to the Defendant. Therefore, it is not illegal that the Defendant’s act of causing the restriction on mining under Article 48(1) of the Mining Industry Act by laid the water pipe without compensation

Therefore, although the judgment of the court below is not somewhat inappropriate in its reasoning, it is just in its conclusion, and there is no error of law such as misunderstanding of legal principles which affected the judgment, contrary to what is alleged in the ground of appeal.

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

Justices Lee Hong-hoon (Presiding Justice)