[1] In a case where approval for a mining plan was obtained prior to the enforcement of the Mining Industry Act amended by Act No. 3640 of December 31, 1982, whether permission for changing the form and quality of a forest should be obtained separately when changing the form and quality of a forest is needed for the implementation of mining (affirmative

[2] Whether permission for changing the form and quality of a forest and an application for extension of the permission period may be refused in a case where there is a need for important public interest for maintaining the national land and nature and preserving the environment like water source quality, etc., even though the area subject to the permission does not fall under a prohibited or restricted area under the law

[3] The case holding that an administrative disposition rejecting an application for extending the period of changing the form and quality of a forest for the land adjacent to the astronomical dynamic excavation designated as a natural monument does not constitute abuse of discretionary power, considering the protection of natural scenery in the surrounding area

[1] According to Article 47-2 of the Mining Industry Act as amended by Act No. 3640 of December 31, 1982 and Article 47-2 of its Addenda, the legal fiction of permission for changing the form and quality of a forest by the authorization of a mining plan (the permission for changing the form and quality of a forest before the Forestry Act amended by Act No. 4816 of December 22, 1994) is applied only to the authorization of a mining plan that has been obtained after the amended Mining Industry Act enters into force. Thus, when a mining plan is approved before the amended Mining Industry Act enters into force, the permission for changing the form and quality of a forest should be separately obtained.

[2] Even though permission for changing the form and quality of a forest does not fall under a legally prohibited or restricted area, permission may be refused when there is a need for major public interest for maintaining the national land and nature and preserving the environment like water source water quality in consideration of the current state, location, surrounding circumstances, etc. of the land subject to application. The same applies to the extension of the period of permission for changing the form

[3] The case holding that an administrative disposition rejecting an application for the alteration of the form and quality of a forest for the extension of the forest land alteration permission period for the land adjacent to the tent mining designated as a natural monument does not constitute abuse of discretionary power, considering the natural landscape protection in the surrounding area

[1] Article 47-2 of the former Mining Industry Act (amended by Act No. 4541 of Mar. 6, 1993); Article 47-2 of the Addenda (amended by Act No. 3640 of Dec. 31, 1982); Article 90 (1) of the former Forestry Act (amended by Act No. 5323 of Apr. 10, 1997); Article 1 of the Administrative Litigation Act / [2] Article 90 (1) of the former Forestry Act (amended by Act No. 5323 of Apr. 10, 1997); Article 90 (1) 7 of the former Enforcement Rule of the Forestry Act (amended by Act No. 1276 of Feb. 13, 198); Article 1 of the former Enforcement Rule of the Forestry Act (amended by Act No. 5329 of Apr. 19, 197); Article 27 of the former Enforcement Rule of the Forestry Act (amended by Act No. 97319 of Apr. 19, 197)

[1] Supreme Court Decision 93Nu6928 delivered on August 24, 1993 (Gong1993Ha, 2643), Supreme Court Decision 97Nu1425 delivered on November 25, 1997 / [2] Supreme Court Decision 92Nu1025 delivered on November 10, 1992 (Gong1993Sang, 121), Supreme Court Decision 92Nu726 delivered on April 23, 1993 (Gong1993Ha, 1574 delivered on May 27, 1993), Supreme Court Decision 92Nu1947 delivered on May 27, 1993 (Gong1993Ha, 1579 delivered on May 27, 1993) 92Nu4859 delivered on May 27, 1993 (Gong197Nu94953 delivered on May 27, 1995).

Plaintiff (Attorney Han-chul et al., Counsel for the plaintiff-appellant)

Ilsan Market

J. S. T. T. T. T. C.C.

Gwangju High Court Decision 97Gu4486 delivered on December 3, 1998

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

The grounds of appeal are examined.

On the first ground for appeal

According to Article 47-2 of the Mining Industry Act as amended by Act No. 3640 of Dec. 31, 1982 and Article 47-2 of the Addenda thereto, the legal fiction of permission for changing the form and quality of a forest (the Forestry Act before it was amended by Act No. 4816 of Dec. 22, 1994) based on the authorization of a mining plan applies only to the authorization of a mining plan granted after the revised Mining Industry Act enters into force. Thus, when the revised Mining Industry Act obtains authorization of a mining plan before it enters into force, the permission for changing the form and quality of a forest should be separately obtained if the change of the form and quality of a forest is necessary to implement mining (see, e.g., Supreme Court Decisions 93Nu6928, Aug. 24, 1993; 97Nu14255, Nov. 25, 197). 208.

Although the judgment of the court below is somewhat different from its reasoning explanation, it is just in its conclusion that the permission for changing the form and quality of the forest and the extension of the permission period necessary for the mining operation in the instant tin mine where the approval for the mining plan was granted prior to the enforcement of the amended Mining Industry Act, and that the extension of the permission period may be refused due to the serious public interest needs for maintaining the national land and nature and preserving the environment, etc. In addition, it is not erroneous in the misapprehension of legal principles as to the requirements or standards for extending the permission period of changing the form and quality of the forest, which affected the conclusion of

The ground of appeal on this point is rejected.

On the second ground for appeal

Article 90(1) of the former Forestry Act (amended by Act No. 5323 of Apr. 10, 1997) and Article 90(1)1 of the Enforcement Rule of the same Act (amended by Act No. 1276 of Feb. 13, 1998), Article 20 subparag. 4 of the former Protection of Cultural Properties Act (amended by Act No. 5719 of Jan. 29, 199), and Article 48(1) of the former Mining Industry Act (amended by Act No. 5454 of Dec. 13, 1997), which are provisions for the protection of the original form and quality of cultural properties, shall not be considered as permission for alteration of cultural properties under Article 20 subparag. 4 of the former Protection of Cultural Properties Act (amended by Act No. 5323 of Apr. 10, 199) and Article 90(1)1 of the former Enforcement Rule of the same Act (amended by Ordinance No. 1276 of the Ministry of Agriculture and Forestry Act).

In accordance with the records, on February 28, 1966, the plaintiff's application for the extension of the period for changing the form and quality of the land of this case as to the land of this case adjacent to the Doho Lake (Shoho Lake), which was designated as natural monument on May 24, 1997, stated the above provision of the Protection of Cultural Properties Act at the first time when the defendant rejected it on August 13, 1997, but later, the defendant asserted that the disposition of this case is for protecting natural scenery such as the surrounding areas of the Dohoho Lake (Shoho Lake), and specified the reasons for the disposition of this case more specific, and on this premise, the court below determined that the disposition of this case does not constitute abuse of discretionary power in light of the records, and therefore, it is reasonable in light of the records, and there is no error of incomplete deliberation as to the disposition of abuse of discretionary power or violation of the rules of evidence, misunderstanding of the legal principles as to the permission authority for forest damage or permission procedure, etc.

We cannot accept the allegation in the grounds of appeal on this point.

On the third ground for appeal

Examining the reasoning of the judgment below in light of the records, since the disposition of this case as to the land of this case for which the plaintiff's request for extension of the period of permission for changing the form and quality of the forest of this case was rejected en bloc, the disposition of this case itself related to the ground for the disposition of this case or part of the object of the disposition can be identified, it is just to dismiss all of the plaintiff's claim of this case seeking revocation of the entire disposition of this case, and there is no error of law by

The argument in the grounds of appeal is not accepted.

Therefore, the appeal is dismissed, and all costs of appeal are assessed against the plaintiff. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Lee Yong-woo (Presiding Justice)