Co., Ltd. (Attorney Jeong Chang-nam et al., Counsel for the defendant-appellant)

Full-time District Court Decision 201Na1448 decided May 2, 20

November 22, 2012

Jeonju District Court Decision 201Da1452 Decided December 9, 2011

1. The part against the defendant in the judgment of the court of first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed;

2. The plaintiff's appeal and the plaintiff's claim expanded in the trial are all dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

With respect to KRW 924,768,639 and KRW 605,415,092 among them, the Defendant shall pay to the Plaintiff 5% per annum from March 22, 2011 to December 9, 2011, KRW 47,206,945 among them, 5% per annum from October 21, 201 to February 3, 2012 until the delivery date of the application for change of purport and cause thereof, and 20% per annum from the next day to the date of full payment (the Plaintiff extended its claim in the trial).

2. Purport of appeal

A. The plaintiff

Of the judgment of the court of first instance, the part against the plaintiff falling under the order to pay the following shall be revoked. The defendant shall pay to the plaintiff 591,536,162 won with 5% interest per annum from March 22, 2011 to November 25, 201, and 20% interest per annum from the next day to the date of full payment.

B. Defendant

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

1. Basic facts

The following facts are recognized in full view of the respective descriptions of Gap evidence 1 to 6, Eul evidence 1 to 17 (including each number), and the purport of all pleadings, in which there is no dispute between the parties, or in which the whole purport of arguments is recognized.

A. The Plaintiff, from around May 3, 1995, obtained a permit to collect stone and aggregate from around 3, 1995 to around 30,00: (a) on August 25, 1995, the Plaintiff obtained a permit to collect earth and rocks from the head of Gun having jurisdiction over the Defendant to the place where it was located (hereinafter “the instant stone collection site”); (b) from the head of Gun having jurisdiction over the Defendant, the size of 6,787 square meters; (c) the size of stone collection area 42,37 square meters; (d) 1,13,748 square meters; (e) the period of permission from August 25, 1995 to August 30, 198 (hereinafter “the instant first permit”); and (e) the period of permission for collecting earth and rocks from 79,542 square meters; (e) the size of stone collection area 51,894 square meters; and (e) the period of permission from 206.35 square meters to 205.6.6.3 square meters.

B. On March 24, 2009, the Plaintiff filed an application for permission to collect earth and stones with the head of the competent Gun for the area of 144,052 square meters for collection of stone in the instant stone collection site, for seven years from the permitted date of permission, and for seven years from the collected amount of earth and stones 1,523,149 cubic meters (hereinafter “instant application”).

C. On June 22, 2009, the Mountainous District Management Committee of Jeollabuk-do, upon the Plaintiff’s instant application, made a conditional decision with the effect that it is reasonable to grant permission to collect earth and stones on the condition that “to establish a complete plan for recovery of walls available for implementation” and “to implement a recovery plan after consultation with the pet-gun.”

D. On August 12, 2009, upon the instant application, the head of Toyju Gun rendered a non-permission disposition (hereinafter “instant non-permission disposition”) on the ground that “(i) the Plaintiff engaged in the collection and collection of the instant application, disregarding the method of the collection, and (ii) the Plaintiff did not perform the administrative orders more than ten times, and there was a direct wall by blasting from the upper part to the lower part without collecting stairs. ② The area subject to the application for the permission of the instant permission of the earth and stones was 300 meters or more under the Enforcement Decree of the Management of Mountainous Districts Act, even if the Plaintiff was able to collect only up to 70/100 of the upper part of the upper part, the Plaintiff did not comply with the criteria for the permission, such as impairing the boundary area, and (iii) the Plaintiff did not comply with the criteria for the permission, and (iv) the case was examined after the completion of the restoration under Article 42 of the Enforcement Rule of the Mountainous Districts Management Act.”

E. Accordingly, on August 31, 2009, the Plaintiff filed an administrative appeal against the instant non-permission disposition with the Jeollabuk-do Administrative Appeals Commission. On January 22, 2010, the Jeollabuk-do Administrative Appeals Commission rendered a judgment on the revocation of the instant non-permission disposition against the Plaintiff (hereinafter “the instant first non-permission disposition”), based on the following circumstances: (i) the Plaintiff did not receive administrative orders at least ten times due to an unlawful act disregarding the collection method during the collection work; and (ii) the Plaintiff appears to have made conditional decisions in consideration of the relevant circumstances, including the table of a mountainous district at the Mountainous District Management Committee in Jeollabuk-do; and (iii) even if the Plaintiff did not commit a violation of the permitted boundary area; and (iv) the Plaintiff’s non-permission disposition against the Plaintiff at the present situation where it is practically difficult to recover is unlawful because it deviates from or abused the discretionary authority.

F. On February 18, 2010, the head of the relevant Si/Gun sent a public notice to the Plaintiff stating that “the period of permission to occupy and use a river site used for the main entry is until December 31, 2013,” and thus, the period of application for permission to collect earth and stones is the same as the period of permission to occupy and use a river site, and if it is intended to obtain permission under the original project plan at the time of the initial application for permission, the period of

G. On March 5, 2010, when the Plaintiff did not take any measure even after receiving the above official document, the head of the relevant Si/Gun issued a permit to collect earth and stone by setting the period of permission for the collection of earth and stone to the Plaintiff by December 31, 2013, which is the period of permission for the occupation and use of the river site for the river site used as the access road to the instant stone collection site. (hereinafter “instant permit disposition”).

H. On April 14, 2010, the Plaintiff appealed to the reduction period, compared to the application period, and filed an administrative appeal with the Jeollabuk-do Administrative Appeals Commission.

I. On August 23, 2010, the head of the relevant Si/Gun confirmed that the area designated by the Plaintiff to preserve the original form at the time of consultation on environmental impact assessment in 2003 was included in the collected area that the Plaintiff intended to collect in the future, as a result of the inspection jointly with the Jeonju regional environmental office, which is an agency for consultation on environmental impact assessment.

(j) On August 24, 2010, the head of the relevant Si/Gun issued a notice of performance of the permission to collect earth and stones to the Plaintiff on the following grounds: (a) on the basis of the above confirmation, the head of the relevant Si/Gun submitted a business plan that excludes the original preservation area from the project target area in compliance with the permitted period for alteration; or (b) on the ground that, if he/she intends to develop the original preservation area into the original preservation area as an area for permission to collect earth and stones, he/she shall undergo prior procedures in accordance with the Environmental Impact Assessment Act and Article 32 of the Enforcement Decree of the same Act; (c) on the ground that the head of the relevant Si/Gun, pursuant to Article 32(3) of the Enforcement Decree of the Management of Mountainous Districts Act, he/she shall comply with the existing conditions for implementation of the permission to collect earth

(k) On August 25, 2010, the Jeollabuk-do Administrative Appeals Commission rendered a disposition to grant permission to collect earth and stones by December 31, 2013 on the ground that the period of permission was seven years for the first time according to the instant first ruling on the instant permission disposition by the head of Gun, which was rendered on the ground that the period of permission to collect earth and stones by December 31, 2013 was contrary to the binding force of the ruling, and thus revoked the disposition to grant permission to the intervenors on March 5, 2010. The head of Gun rendered a ruling that the Intervenor applied for permission to collect earth and stones by the head of Gun on March 24, 2009 (hereinafter “the second ruling”).

Other. On June 2, 2011, July 5, 201, and July 21 of the same year, the head of the relevant Si/Gun rendered each notification of performance according to the permission to grant permission in accordance with the second adjudication of the same case to the Plaintiff.

(m) On July 28, 201, the Plaintiff submitted a written consultation on environmental conservation measures according to the permission to collect earth and stones to the head of the relevant Gun upon notification of implementation under the respective permission to collect earth and stones.

(n) On August 2, 201, the head of the relevant Si/Gun requested the Jeonju Regional Environmental Office to review the environmental conservation measures for permission for soil and rocks along with the written consultation on environmental conservation measures submitted by the Plaintiff under the Environmental Impact Assessment Act.

(o) On September 23, 201, the Jeonju Regional Environmental Office sent its review opinions on environmental conservation measures following the modification of the project plan to the head of the Gun of the complete city on September 23, 2011.

(p) On October 6, 201, the Plaintiff submitted the results of reflecting the project plan according to the above review opinions of the former Regional Environmental Office to the head of the competent Gun having jurisdiction over the head of the competent Gun.

(q) On October 21, 201, the head of the relevant Si/Gun rendered a notice of the implementation of the permission to collect earth and stones upon the instant application (hereinafter “final permission disposition”) after reviewing the results of the foregoing project plan’s reflection to the Plaintiff on October 21, 201.

2. Relevant provisions;

A. Article 37 of the former Administrative Appeals Act (wholly amended by Act No. 9968, Jan. 25, 2010)

(1) A ruling shall bind the administrative agency which is the appellee and other relevant administrative agencies.

(2) Where there is a ruling ordering the implementation of a disposition which refuses a request by a party or neglects due to an omission, the administrative agency shall, without delay, take a disposition regarding the request for relocation pursuant to the purport of the ruling.

(b) Article 49 of the Administrative Appeals Act;

(1) A ruling citing an appeal shall bind the appellee and other relevant administrative agencies.

(2) If there is a ruling ordering the performance of a disposition which refuses a request by a party or neglects due to an omission, the administrative agency shall, without delay, take a disposition against the request for relocation in accordance with the purport

3. Whether liability for damages arises;

A. Summary of the plaintiff's assertion

Notwithstanding the first ruling of the Jeollabuk-do Administrative Appeals Commission, the head of Gun, who is a public official belonging to the defendant, voluntarily reduced the period of collecting earth and rocks on the instant stone collection in accordance with the ruling of this case. Furthermore, even though the second ruling of this case was revoked and the ruling to permit the instant application was issued, the final permission of this case was not immediately made and the final permission of this case was not made until the date when a considerable period from the date of the second ruling of this case expires, which was the date of the second ruling of this case, and thus, caused an illegal state against the binding force of the second ruling of this case. Ultimately, as long as the first and second rulings of this case were made, the head of Gun, who is the administrative agency, was bound by the ruling and did not perform the duty of making a disposition in accordance with the purport of the ruling of this case against the binding force of the cited ruling, and the head of Gun, who is a public official belonging to the defendant, violated the duty of the State Compensation Act by intention or negligence. Thus, the defendant is liable to compensate the plaintiff for mental damage from 12.

B. Determination

1) Whether the instant permission disposition is against the binding force of the first ruling of the instant case

A) The binding force of the ruling shall only extend to the judgment on specific grounds such as the order of the ruling and the recognition and judgment of facts constituting the basis for the ruling (see Supreme Court Decisions 96Nu13972, Feb. 27, 1998; 99Du5238, Mar. 23, 2001; 99Du5238, Apr. 25, 2001). Even if the previous disposition was cancelled by the ruling, it does not conflict with the binding force of the previous disposition for reasons different from the previous disposition (see Supreme Court Decision 99Du3324, Sept. 14, 2001; 2002Du3201, Apr. 25, 2003; 2002Du32016, Apr. 25, 2003). It should be determined depending on whether the previous disposition is an unlawful one, and it should be determined based on whether it is identical to the previous one and the new facts (see Supreme Court Decision 20000Du1606, supra.

On the other hand, the gathering of earth and sand in forests directly affect the maintenance of national land and nature and the preservation of environment. Thus, even if the gathering of earth and sand constitutes not only the restricted area for gathering earth and sand, but also falls under such restricted area, the permitting agency may refuse to grant permission when it is deemed necessary for important public interests, such as the maintenance of national land and nature, and the preservation of environment, considering the shape and location of the land subject to an application for permission for gathering earth and sand and its surrounding circumstances, etc. (see Supreme Court Decision 2005Du9736, Jun. 15, 2007, etc.).

B) In light of the above legal principles, the grounds for revocation of the permission to occupy and use the instant river in the first instance ruling are as follows: ① there is no administrative order issued by the head of Gun on ten occasions by disregarding the methods of the permission during the collection work; ② there is no ground for rejection of the permission to occupy and use the instant river in the first instance ruling. The ground for revocation of the permission to occupy and use the instant river in the first instance ruling is 0 years, and the ground for revocation of the permission to occupy and use the instant river in the first instance ruling. The ground for revocation of the permission to occupy and use the instant river in the first instance ruling cannot be considered as grounds for rejection upon the above determination; ② The ground for revocation of the permission to occupy and use the instant river in the first instance ruling by the head of Gun, which is the first instance ruling for the first instance ruling on the first instance of the instant river in the first instance ruling. The Plaintiff’s request for the permission to use the instant river in the first instance ruling for the first instance ruling for the first instance ruling for the first instance ruling on March 5, 20191.

C) Therefore, the Plaintiff’s assertion that the instant permission disposition conflicts with the binding force of the first ruling of the instant case is without merit.

2) Whether the permission disposition of this case by the head of Toyju constitutes a tort

A) Even if a certain administrative disposition is cancelled after the appeal is filed, it cannot be determined that the pertinent administrative disposition is caused by public official's intentional or negligent negligence and constitutes a tort. In light of the public official's standard, it is reasonable to deem that the public official in charge of such administrative disposition satisfies the requirements for State compensation liability under Article 2 of the State Compensation Act in a case where it is recognized that such administrative disposition has lost objective legitimacy by neglecting objective duty of care. In such a case, whether the administrative disposition has lost objective legitimacy should be determined by taking into account all the circumstances such as the type and nature of gains of infringement, the form and cause of the administrative disposition infringing upon, the victim's involvement in the exercise of the administrative disposition, and the degree of damage, etc. (see Supreme Court Decisions 9Da7060, May 12, 2000; 200Da31018, Jun. 11, 2004, etc.).

B) In light of the above legal principles, the facts that the permission disposition of this case was deemed illegal by the second judgment of this case are examined in the above basic facts, but it is not sufficient to recognize that the head of Toyju Gun's act of reducing the permission period of this case compared to the application of this case has already taken into account the need for important public interest, such as the maintenance of national land and nature, and the preservation of environment, as seen above, as seen in the second judgment of this case, it is insufficient to recognize that the permission disposition of this case by the head of Toyju Gun in breach of objective duty of care constitutes a loss of objective legitimacy, and there is no other evidence to acknowledge

C) Therefore, the Plaintiff’s assertion that the instant permission disposition by the head of the son/Gun to which the Defendant belongs constitutes a tort is without merit.

3) Whether the final permission disposition of this case was due to the Defendant’s responsibility for delaying a considerable period from the date of the second adjudication of this case, which goes against the binding force of the second adjudication of this case

A) As examined in the above basic facts, in the event that the plaintiff intends to develop an area designated to preserve its original form in the area where the plaintiff intends to collect earth and rocks for the fact that it was included in the area to be collected in the future at the time of consultation on environmental impact assessment in 2003, a prior procedure shall be implemented pursuant to Article 22 of the Environmental Impact Assessment Act and Article 32 of the Enforcement Decree of the same Act, and a prior procedure shall be conducted pursuant to Article 32(3) of the Enforcement Decree of the Management of Mountainous Districts Act, and a permit shall be issued and a collection work shall be commenced upon the fulfillment of the implementation notification of the permission to collect earth and rocks pursuant to Article 32(3) of the Enforcement Decree of the Management of Mountainous Districts Act, on the ground that

B) In order for the Plaintiff to be subject to the instant final permission disposition from the head of the complete-head of the Gun, the Plaintiff, as seen in the above basic facts, failed to comply with the Defendant’s prior notification of the implementation of the procedures under the Environmental Impact Assessment Act, as seen in the above basic facts, and submitted a written consultation on environmental conservation measures under the permission to collect soil and stones on July 28, 201, and following the Plaintiff’s submission of the above written consultation, comprehensively taking account of the following facts: (a) the period from the date of the second ruling to the date of the instant final permission disposition after a considerable period of time has elapsed from the date of the second ruling, the period from the date of the instant final permission disposition due to the Plaintiff’s failure to perform the duty of prior consultation under the Environmental Impact Assessment Act may be deemed to be due to the Plaintiff’s failure to perform the duty of prior consultation under the Environmental Impact Assessment Act.

C) Therefore, the Plaintiff’s assertion that the instant final permission disposition was delayed for a considerable period from the date of the second ruling on the premise different from the above determination is attributable to the responsibilities of the head of the relevant us and is contrary to the binding force of the second ruling on the instant case is without merit.

4) Family judgment

A) As seen earlier, the instant permission disposition by the head of the Shii-Kun does not go against the binding force of the first ruling of this case and does not constitute a tort. However, unlike the view, we examine cases where the instant permission disposition is contrary to the binding force of the first ruling of this case and it is deemed that it constitutes a tort.

B) We examine the following facts: ① the expiration date of the period of permission to collect earth and stones of this case relating to the instant Chapter 1 until January 31, 2011. According to the annual quarrying plan submitted by the Plaintiff to the head of Gun in full at the time of the application for permission to collect earth and stones of this case, the estimated amount of collection per year is 97,145 meters, which is the same in five years (from February 1, 2010 to January 31, 201). Considering the above facts, the Plaintiff can be recognized by the evidence No. 2-16, regardless of the instant non-permission disposition and the instant permission disposition, and the Plaintiff cannot be deemed liable for damages from the date following the 20th anniversary of the expiration date of permission to collect earth and rocks of this case by January 31, 2011. Thus, it cannot be deemed that the Plaintiff did not actually collect earth and rocks from the date of the instant 10th anniversary of the expiration date of permission to the date of the Defendant’s final permission.

4. Conclusion

Thus, after the permission disposition of this case and the second ruling of this case, the plaintiff's claim of this case, which is a public official of the defendant, is unlawful act by intention or negligence, and therefore, is dismissed without any reason, on the premise that the defendant's liability for damages is established. Since the judgment of the court of first instance is unfair with different conclusions, the part against the defendant in the judgment of the court of first instance which accepted the defendant's appeal and dismissed the plaintiff's claim corresponding to the revoked part, and all the plaintiff's claim extended in the plaintiff's appeal and the trial of this case are dismissed. It is so decided as per Disposition.

Judges Lee Jin-hoon (Presiding Judge)