Plaintiff (Attorney Kim Hyun-soo, Counsel for the plaintiff-appellant)

The head of the Mining Registration Office

November 4, 2008

1. The defendant's disposition not to accept an application for the establishment of a mining right against the plaintiff on February 11, 2008 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

The following facts shall not be disputed between the parties, or may be recognized by comprehensively considering the whole purport of the pleadings in each entry in Gap evidence 1 through 5 (including each number):

A. The Defendant revoked, in accordance with Article 35 of the Mining Industry Act (hereinafter “Act”) on the ground of non-party’s non-party’s failure to develop the mining right (registration number No. 2), gold, silver, Tmbru, and Stchn, hereinafter “the mining right of this case”) in the name of the non-party regarding the Yellow River No. 1 (Omission 1) (hereinafter “the mining area of this case”), and completed the registration of extinguishment in the mining register on July 27, 2007.

B. On January 28, 2008, the Plaintiff filed an application with the Defendant for the establishment of mining rights to the mining area of this case (hereinafter “instant application”), but the Defendant, on February 11, 2008, accepted the application under Article 10(1)5 of the Enforcement Decree of the Act on the ground that the instant application was filed within the period of restriction on application under Article 16 of the Act (six months after the extinguishment of existing mining rights) (hereinafter “instant disposition”).

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Since the registration of the extinguishment was completed in the mining ledger on July 27, 2007, the effect of the extinguishment shall take place from midnight on the day ( July 27, 2007). Accordingly, the period of restriction on application under Article 16 of the Act (six months) shall start from July 27, 2007 and was completed on January 26, 2008, and the period of restriction on application under Article 16 of the Act (six months) was completed on January 26, 2008. Thus, the application of this case (application January 28, 2008) shall be deemed to be a legitimate application for the establishment of a mining right which was submitted after the expiration of the above restriction period, but the disposition of this case, which the defendant reported differently

2) Even if the application for the establishment of a domestic mining right was filed within the above application period, the defendant deleted the application limitation (this mining area shall not be filed within six months after the extinguishment of the mining area) on the "Cadastral Table" on his/her management from January 27, 2008, and publicly announced that the application for the establishment of a mining right after January 27, 2008 is legitimate. Thus, the disposition of this case which the plaintiff trusted and refused to accept the application for the establishment of a mining right is unlawful.

3) In addition, even if the application for the establishment of this case was submitted within the period of restriction on application under Article 16 of the Act, the Plaintiff is not obligated to return the application without return, and where there is no person who has filed an application for the establishment of mining rights until the application is returned, the Plaintiff provided an opportunity to correct the procedural defect so that it can be corrected, and the application for the establishment of mining rights can be rejected only if it does not comply with the order for correction, and the disposition of this case was rejected without giving the opportunity for correction, and thus, it is unlawful.

(b) Related statutes;

[ Mining Industry]

Article 10 (Nature of Mining Rights)

(1) All mining rights shall be real rights, and except as otherwise provided for in this Act, the provisions of the Civil Act and other Acts and subordinate statutes concerning real estate shall apply mutatis mutandis.

(2) Mining rights may be restricted, in accordance with the provisions of this Act, for the purpose of rational development of the mining industry or coordination with other public interests.

Article 16 (Restriction on Applications regarding Extinguishmentd Mining Areas)

Where a mining right has been terminated due to the termination of the term of mining rights under Article 12 or where a mining right has been cancelled pursuant to Article 35, no application for establishment of a mining right (including an application for expansion of a mining area) for other minerals existing in the same mineral deposit as the registered minerals of the extinguished mining area shall be filed within six months after the extinguishment of the mining right.

Article 18 (Priority in Cases of Overlapping Applications for Establishment of Mining Rights)

(1) Where applications for the establishment of mining rights overlap in the same area, the application for the establishment of mining rights which arrives first shall prevail.

(2) Where the application for the establishment of mining rights arrives at the same time, the Minister of Knowledge Economy shall determine priority.

Article 38 (Registration)

(1) The following matters shall be registered in the mining ledger:

1. Establishment, modification, transfer, extinguishment, and restriction on the disposal of mining rights or mortgages;

(2) Registration under paragraph (1) shall substitute for registration.

Article 39 (Effect of Registration)

Matters referred to in the subparagraphs of Article 38 (1) shall not become effective unless they are registered, except in any of the following cases:

1. Transfer of mining rights due to inheritance or other general succession;

2. Secession of joint mining right holders due to death;

3. Extinguishment of mining rights due to expiration;

4. Extinguishment of a mortgage due to merger or extinguishment of the claim secured by the mortgage; and

5. Auction sale under Article 36 or 37.

[Enforcement Decree of the Mining Industry Act]

Article 10 (Non-Acceptance, etc. of Application)

(1) Where an application for the establishment of mining rights under Article 15 (1) of the Act falls under any of the following subparagraphs, the Minister of Commerce, Industry and Energy shall not accept it:

5. Where the application contravenes Article 16 of the Act;

[Civil Act (amended by Act No. 8720 of Dec. 21, 2007)]

Article 155 (Scope of Application of This Chapter)

The calculation of periods shall be subject to the provisions of this Chapter unless otherwise provided by Acts and subordinate statutes, judicial dispositions or juristic acts.

Article 157 (Starting Point of Computing Period)

If a period has been fixed by the day, week, month or year, the first day of such period shall not be included in the computation: Provided, That this shall not apply if the period begins at midnight.

Article 160 (Computation according to Calendar)

(1) If a period has been fixed by the week, month or year, it shall be calculated according to the calendar.

(2) If a period does not commence at the beginning of a week, month or year, such period shall expire on the day in the last week, month or year preceding the day corresponding to that which it commenced.

Article 161 (Holiday and Maturity Point of Period)

Where the last day of a period falls on a national holiday, such period shall expire on the following day.

C. Determination

1) Article 16 of the Act provides that in the case of an area where mining rights are extinguished upon the expiration of the term of mining rights under Article 12 of the Act or mining rights are cancelled under Article 35 of the Act, an application for establishment of mining rights for other minerals existing in the same mineral deposit as the registered minerals of extinguished mining areas shall not be filed within six months after the said mining rights are extinguished. Article 10(1)5 of the Enforcement Decree of the Act provides that an application for establishment of mining rights under Article 15(1) of the Act shall not be accepted if the said application violates Article 16 of the Act, and Articles 38(1)1 and 39 of the Act shall not take effect unless the said matters are registered.

2) Meanwhile, in a case where there is a defect in the provisions of public law, the provisions of the Civil Act or those of pure nature with the general legal and technical nature may apply mutatis mutandis to the calculation of the period unless it is contrary to the special nature of the public law. Since the Mining Industry Act does not have any separate provisions concerning the calculation of the period, the provisions concerning the calculation of the period under the Civil Act may apply mutatis mutandis to the calculation of the period (Article 10(1) of the Act shall be a real right, and except as otherwise provided in this Act, the provisions of the Civil Act and other Acts and subordinate statutes shall apply mutatis mutandis to real estate, and Article 155 of the Civil Act shall apply mutatis mutandis to the calculation of the period under Article 155 of the Civil Act, unless otherwise provided in Acts and subordinate statutes, judicial disposition or legal act, the first day of the period shall not be included in the calculation of the period under Article 155 of the Civil Act, but the first day of the period under Article 157 of the Civil Act shall not be included in the calculation of the period under the beginning of the period under the preceding two months or calendar.

3) In the instant case, the Plaintiff asserted that the extinguishment registration was completed on July 27, 2007 in the mining register and the effect of the extinguishment was completed from the midnight on July 27, 2007, and the period of restriction on application under Article 16 of the Act was completed on January 26, 2008. However, the argument above is deemed to include the purport of the instant establishment application as a legitimate application for the establishment of a mining right which was submitted after the expiration of the period of restriction on application under Article 16 of the Act. Therefore, in light of the above legal provisions and legal principles, it is necessary to examine whether the instant establishment application is an applicant for the establishment of a legitimate mining right after the lapse of the period of restriction on application under Article 16 of the Act.

According to the above, since the mining right of this case was registered to be extinguished in the mining ledger on July 27, 2007, the period of restriction on application for six months under Article 16 of the Act to the mining area of this case is obvious in the calculation of the amount from July 28, 2007 to January 27, 2008 (in accordance with the principle not to be included in the first day), and on the other hand, the application of this case was filed on January 28, 2008, and therefore, the application of this case was filed after the six-month period of restriction has expired, and it is deemed that the application of this case was filed on January 28, 2008.

4) As to this, the defendant asserts that the period of restriction on application under Article 16 of the Act is calculated from July 28, 2007 to January 27, 2008, and the period of restriction on application expires on January 27, 2008, which is the expiration date, under Article 161 of the Civil Act, the period of restriction on application expires as of January 28, 2008, which is the next day, and therefore, the application of this case is an unlawful application filed before the expiration of the above restriction period. However, in calculating the period of restriction on application of this case because the Mining Industry Act does not have a separate provision on calculating the period, even if it is applied by analogy, it can not be applied by analogy without any restriction on calculating the period under the Civil Act, and if it is the last day of the restriction period on application of this case, the defendant's act cannot be viewed as an act to prevent the expiration of a certain period of time as stipulated in Article 161 or 161 of the Civil Act, which is the last day of the restriction period.

5) Therefore, the application of this case is an application for the establishment of a legitimate mining right that was submitted after the expiration of the period for restriction on application under Article 16 of the Act. Thus, the disposition of this case, which was conducted by the defendant on the premise that it is unnecessary to examine the remaining arguments, is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition.

Judge Jeong Ho-sung (Presiding Judge)