(영문) 서울고등법원 2013.9.13. 선고 2012누20757 판결

On January 25, 2011, the defendant revoked the registration of the mining right and the registration of the extinguishment of the mining right stated in the separate sheet against the plaintiff.

Reasons

1. A cited part;

The reasoning for the statement concerning this case is as stated in the judgment of the court of first instance, except for the addition to the following 2.3. Thus, this case is cited in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. The addition;

The following parts shall be added between 10 pages 3 and 4 of the first instance judgment:

On the other hand, the Plaintiff recognized the necessity of dredging, and established a plan to dredge public waters of 1,262,00 square meters corresponding to B sea route 4.2 km from around 2013, and according to the above plan, the part of the mining rights of this case is included in the scope of dredging construction work, and the Plaintiff can begin mining because he can obtain permission to occupy and use public waters from the Young-gu Gun at present through consultation. In light of these circumstances, the instant disposition is deemed to be unlawful because it deviates from or abused discretionary power or violates the principle of trust protection.

However, the illegality of administrative disposition in the administrative litigation shall be determined on the basis of the law and factual state at the time of the administrative disposition, and it shall not be affected by the amendment and repeal of the law or changes in the actual state after the disposition (see, e.g., Supreme Court Decision 2001Du10684, Jul. 9, 2002). Furthermore, according to the results of fact inquiry about the Young-gu Gun of this court, there is no contents of dredging construction plan, so the plaintiff's above assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim seeking the cancellation of the disposition of this case shall be dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is so decided as per Disposition.