(a) Nature of permission for collection of earth or stone or nonpermission;

(b) The validity of a part of permission that it is impossible for an administrative agency to renew permission when it grants permission to collect earth or stone with a period of one year attached to a condition that it is impossible to renew permission;

A. The permission or non-permission disposition with respect to the collection of earth and rocks under the Forestry Act is excluded from the discretion of the disposition authority, and the requirement of the disposition is, in particular, limited to the determination on the existence of non-permission grounds, and the permission is also bound by the purport of the law, and the permission must be granted with respect to the application for non-permission which does not have any grounds for non-permission. The discretion on the determination of the existence of a ground for non-permission is unlawful as a disposition infringing the rights and interests of the people who can obtain the permission, unless there is a ground for non-permission.

B. Where an administrative agency grants conditional permission that the period of permission is terminated one year at the time it grants permission to collect earth and rocks, and that it is impossible to renew the permission, the part of the period of permission among the conditions is valid as attaching additional clauses to the administrative act based on the permission to collect earth and rocks. However, the part of the condition that it is impossible to renew the permission cannot be viewed as additional clauses to the main contents in order to limit in particular the general effect of administrative act. However, even if the permission to collect earth and rocks, which is the main act, becomes void due to the expiration of the period of permission, this part of the condition becomes invalid.

Article 90-2 of the Forestry Act

Gyeongbuk Industrial Development Corporation

Head of Gun

The disposition by the defendant which rejected the collection of earth and rocks on each land listed in the separate sheet against the plaintiff on March 12, 1991 shall be revoked.

Litigation costs shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

Nos. 1, 2, 3-1 through 4, 4, 5, 28, 85, 88, 89, 1, 4, 5, 10, and 5-10, 1, 2, and 3-1, 2, 2, and 3-1, and 28, 1, 25, 88, 89, 1, 2, and 10 are not disputed in the formation, and 2, 3, 2, and 10 of which the authenticity of the portion of private document is ratified by the description, and 2, 3, and 3 of the witness’s testimony,

(1) From July 3, 1973, when Nonparty Daeyang Industrial Co., Ltd. (hereinafter “the instant forest”) took over the forest land listed in the annexed list of real estate (hereinafter “the instant forest”) for which permission was granted for the extraction of aggregate for construction from July 3, 1973, and taken over it on April 14, 1976, the period of permission expires on December 31, 198. On January 5, 1989, the Defendant applied for permission for the extraction of aggregate within the instant forest for five years from January 1 to January 1, 1994.

(2) At that time, Non-party 123 et al., the residents of Esong-gu, Esong-gu, the residents of Esong-gu, the Dong-gu, the Dong-gu, and 123 persons, who are residents of Esong-gu, the Dong-gu, the Dong-gu, the Dong-gu, and Gyeong-gu, the Dong-gu, are running in a narrow local road, with frequent traffic and property damage caused by the aggregate transport vehicles belonging to the non-party company. A group objection to the permission is formed by the non-party 1 and the non-party 1, who is composed of the representatives of Esong-gu, the Dong-gu, the Dong-gu, the Dong-gu, the Dong-gu, the Dong-gu, the Dong-gu, the Dong-gu, the Dong-gu, the Dong-gu, the Dong-gu, the Dong-gu, had the defendant complete the permission within 10 years from the permission period, and the non-party 1, the defendant completed the permission period in parallel with the permission period.

(3) On February 2, 190, the representative director of the Plaintiff Company: (a) purchased the instant forest from the Nonparty Company; (b) acquired equipment necessary for collecting earth and rocks from the Nonparty Company; and (c) established the Plaintiff Company on March 20, 1990; and (d) completed the registration of incorporation on March 20, 199; (b) obtained a written consent from the Nonparty Company, the owner of the instant forest on the registry, to consent to the application for permission to collect earth, sand, and rock within the instant forest on August 1990; and (c) agreed that the Plaintiff would donate KRW 100,000 to the Mari Village Fund, which is located in the Gyeongsan-ri, the Gyeongsan-ri, the Gyeongsan-ri, the Gyeongsan-ri, the Gyeongsan-ri, and the entity incidental thereto; and (d) the Defendant concluded the said permission to grant permission to the Plaintiff on February 28, 1991 (the Plaintiff’s conditional permission to grant permission to the permission to the Plaintiff on March 1319, 198).

2. Both claims;

As seen earlier, the Defendant: (a) concluded the period of permission on March 31, 1989 against the non-party company on a one-year basis as opposed to the extension of the period of permission to the non-party company at the time of the renewal of permission; (b) even if the Plaintiff did not confirm it, the instant non-permission disposition based on the terms and conditions of permission is lawful; (c) although the instant application area goes beyond 2 to 3 meters in the distance of the Restriction Provisions under the Forestry Act, the purpose of the Forestry Act is to prevent danger and injury to the public interest in the vicinity; (d) on the grounds that the purpose of legislation of the Forestry Act is likely to pollute the river to which the provisions of Article 90-2 of the Forestry Act and Article 91-3 of the Enforcement Decree of the Enforcement Decree of the said Act apply mutatis mutandis to the collection of earth and rocks at the time of the collection of earth and rocks, and thus, the instant non-permission disposition is lawful

As to this, the Plaintiff collected the earth and rocks in this case since the permission was renewed in 1974 and it was conducted until March 31, 1990, the Plaintiff asserts that the restriction of Article 79 of the Enforcement Decree is not applied pursuant to Article 91-3 (1) 3 of the Enforcement Decree. Even if the restriction of Article 79 of the Enforcement Decree is applied to the area where the permission of this case is applied, the area where the permission of this case is applied is 10 to 138 meters, 285 meters, 50 meters, 50 meters, 50 meters, 50 meters, 50 meters, 50 meters, 90-2 of the Forestry Act and Article 91-3 of the Enforcement Decree of the Enforcement Decree of the Forestry Act, and noise, vibration, rain, rain, etc. caused by blasting the rocks in order to collect the earth and rocks in this case, and that the disposition of this case is unlawful due to the lack of any reason for non-permission or damage caused by non-permission.

3. The nature of the non-permission disposition in this case

Article 1 of the Forestry Act provides that the purpose of this Act is to contribute to the preservation of national land and the sound development of the national economy by prescribing fundamental matters concerning the multiplication of forest resources and forestry, the protection and development of forests, the improvement of forest productivity, and the enhancement of the public function of forests. Accordingly, Article 90-2 (1) of the same Act provides that a person who intends to extract and gather building stones within a forest shall obtain permission of the head of Si/Gun under the conditions as prescribed by the Ordinance of the Ministry of Agriculture and Forestry. Paragraph (3) of the same Article provides that an area for which quarrying permission is to be granted shall not be permitted where such an area falls under the area prescribed by the Presidential Decree due to the preservation of national land and nature, the protection of cultural property and important facilities of the State, or other necessity for public interest. Article 91-3 (1) of the Enforcement Decree of the Forestry Act provides that Article 79 of the same Act shall apply mutatis mutandis to the restriction of permission of quarrying within a public or private forest under the provisions of Article 90-2 of the Act, and Article 79 (2) of the Enforcement Rule provides that the same shall not apply mutatis mutandis to the following area within 10 meters:

In light of the purport and contents of the above provisions, Article 23 of the Constitution provides that property rights shall be guaranteed in the Constitution and the expropriation, use or restriction of property rights due to public necessity shall not be permitted in the absence of any justifiable compensation as provided by the law. In addition, permission for the collection of earth and stone shall be excluded from the discretion of the disposition agency as to whether or not the disposition is to be taken, and the requirements of the disposition shall be limited to the judgment on whether or not the grounds of non-permission exist in particular, and the requirements of the disposition shall be limited to the judgment on the existence of the grounds of non-permission, which shall be bound strictly in the purport of the law, and the permission shall be granted for the application without the grounds of non-permission. The discretion on the determination of the existence of the grounds of non-permission shall be unlawful as a disposition infringing upon the rights

4. Whether the non-permission disposition in this case is legitimate

By examining the grounds for non-permission in order, it is to determine the legitimacy of the non-permission disposition in this case.

(1) Determination on the grounds for non-permission based on a conditional permission that denies the renewal of the license

As alleged by the Defendant, the Defendant, as opposed to the extension of permission to the non-party company on March 31, 1989, at the time of permission to collect earth and stones from the non-party company, concluded the period of permission on April 1, 1989 to March 31, 1990, with one year from March 31, 199, and rendered a conditional permission that it is impossible to renew the permission. Of the conditions, the part that the period of permission is from April 1, 1989 to March 31, 1990 among the conditions is valid as an additional condition based on the administrative act of permission to collect earth and stones. However, the part that it is impossible to renew the permission cannot be viewed as an additional condition as an incidental declaration of intention added to the main contents in order to limit in particular the general effect of administrative act. Even if this part can be seen as an additional condition, the Defendant’s assertion that it is impossible to renew the permission on the non-party company as its main act becomes void due to the expiration date of permission.

(2) Determination as to the grounds for non-permission on the grounds of falling under the exclusion zones of quarrying permission

Article 90-2 (3) of the Forestry Act provides that an area intended for quarrying permission shall not be permitted for quarrying permission in cases where it falls under an area prescribed by the Presidential Decree due to the preservation of national land and nature, the protection of cultural property and important facilities of the State, or other necessity for public interest. Article 91-3 (1) of the Enforcement Decree provides that the provisions of Article 79 shall apply mutatis mutandis to the restriction, etc. of quarrying permission in public or private forests under the provisions of Article 90-2 of the Act. Article 79 (2) of the Enforcement Decree provides that a person may not sell earth and stone in an area falling under any of the following subparagraphs. Article 79 (2) of the said Act provides that a person shall not sell earth and stone in such area within 100 meters from railroads, tracks, roads, canals, rivers, lakes, possession of lakes or houses: Provided, That this shall not apply to an area within 1,00 meters in cases of a riverside area on national highways, or an area within 2,000 meters in cases of an expressway or railroad.

Therefore, in light of the following facts: (a) No. 96 No. 96, which is acknowledged to have been genuine by the preceding purport of the pleading; (b) the witness maximum fluence, and the result of on-site inspection of party members’ testimony and the whole purport of oral argument, the application area for permission of quarrying is 102m from the local highway between Daegu Cheongdo; (c) 300m from the river in its vicinity, 40m from the ground ground for permission of quarrying, 30m from the river in its neighboring area, 30m from the Simsan-do, Gyeongsan-do, Hamsan-si, Hamsan-do; (d) there are 47m from the ground for the application for permission of quarrying; and (e) there is no possibility that some of the residents of the surrounding area might suffer damage to the river in accordance with the provisions of Article 90-2 and 90-3 of the Enforcement Decree of the Forestry Act, and there is no possibility that the permission of quarrying and 97m from the surrounding area can be applied mutatis mutandis.

5. Conclusion

Ultimately, the non-permission disposition of this case should be revoked due to its illegality. Accordingly, the plaintiff's claim of this case seeking its revocation is justified, and the costs of lawsuit are assessed against the losing defendant. It is so decided as per Disposition.

Judges Song Jin-hun (Presiding Judge)