[1] The purport of Article 40 (2) 1 of the former Mining Industry Act concerning the ground for revocation of mining right

[2] The case holding that a disposition to revoke a mining right by a mining right holder who has discontinued his/her business for not less than one year without authorization is not an abuse of discretion

[1] As basic resources used as the foundation of industry have a significant impact on the national economy, however, because they are buried exclusively in the national land, it is necessary to establish a mining right under the involvement of the State. Once a mining right is established, it is necessary to induce the development of mineral resources which belong to the category according to the purport of the establishment of a mining right. The cancellation of a mining right under Article 40 (2) 1 of the former Mining Industry Act (amended by Act No. 5454 of Dec. 13, 1997) is intended to promptly adjust idle mining rights by possessing the name of a mining right without establishing a mining right for a long time upon registering the establishment of a mining right and without developing a long-term mineral resources.

[2] The case holding that a disposition to revoke a mining right by a mining right holder who has discontinued his/her business for not less than one year without authorization is not an abuse of discretion

[1] Articles 40(2)1, 45(3) and (4), and 99 of the former Mining Industry Act (amended by Act No. 5454 of Dec. 13, 1997); Article 73 of the former Enforcement Decree of the Mining Industry Act (amended by Presidential Decree No. 15598 of Dec. 31, 1997) / [2] Articles 40(2)1, 45(3) and (4), and 99 of the former Mining Industry Act (amended by Act No. 5454 of Dec. 13, 1997); Article 73 of the former Enforcement Decree of the Mining Industry Act (amended by Presidential Decree No. 15598 of Dec. 31, 1997)

[1] Supreme Court Decision 81Nu426 delivered on September 28, 1982 (Gong1983, 93) Supreme Court Decision 96Nu10102 delivered on September 9, 1997 (Gong1997Ha, 3126)

Plaintiff (Attorney Seo-sung et al., Counsel for the plaintiff-appellant)

The Minister of Trade, Industry and Energy;

Seoul High Court Decision 98Nu5127 delivered on January 28, 1999

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

We examine the grounds of appeal.

According to the reasoning of the judgment below, the court below acknowledged the following facts by taking full account of the evidence in its judgment.

(A) On July 20, 1930, the mining right of this case consisting of three mining areas was registered on December 15, 1937, and December 9, 1932, and on April 24, 1972, the approval for the alteration of the mining plan was granted on May 8, 1980.

(B) The defendant revoked the mining right of this case on September 15, 1993 pursuant to Article 40 (2) of the former Mining Industry Act (amended by Act No. 5454 of Dec. 13, 1997; hereinafter referred to as the "Act"), but registered the restoration of the mining right on October 2, 1993, after receiving an objection from the non-party 1 who had been the mining right holder at the time of revocation of the above disposition on October 2, 1993.

(C) Even thereafter, the mineral production report under Article 99 of the Act was made on January 1, 1994 with respect to the mining right of this case and no application was filed for the suspension of business under Article 45(3) of the Act.

(D) On June 29, 1996, the Plaintiff purchased most of the shares of Nonparty 2 and Nonparty 3 and became joint mining right holders together with Nonparty 2 and Nonparty 3, and simultaneously registered as joint mining right representatives.

(E) After November 1996, the Plaintiff filed an application for the Support Fund for Drainage Restoration with the Korea Mining Promotion Corporation. The Plaintiff employed four mining sources to prepare mining operations from December 1, 1997 to March 199, but did not take any application for approval for suspension of business or any other procedure prescribed by law.

(F) On October 23, 1996, prior to the three-month period of the instant disposition, the Defendant issued to the Plaintiff an administrative notice on the cancellation of mining rights at the address in the Mining Register.

(G) On March 18, 1997, the defendant revoked the mining right of this case pursuant to Article 40 (2) 1 of the Act on the ground that the mining right of this case was continuously suspended for not less than one year without authorization.

Furthermore, since January 194, the court below did not report mineral production under Article 99 of the Act until now, since there was no application for suspension of business under Article 45 (3) of the Act, and therefore, it constitutes grounds for cancellation of mining rights under Article 40 (2) 1 of the Act. The plaintiff has been invested in KRW 100 million for ten years since the transfer of the mining right of this case, and the plaintiff recently applied for subsidies for restoration of drainage and started mining preparation work, etc., the ground for cancellation of mining rights of this case is not a justifiable reason to be exempted from the above cancellation, and there is no obvious reason to view that the disadvantage suffered by the plaintiff due to cancellation of mining rights of this case is significant in light of the public interest to be achieved. Accordingly, according to the defendant's internal guidelines for cancellation of mining rights, the court below determined that the above disposition of this case should be pre-announcement to mining right holders three months before the base date for cancellation of mining rights of this case, but it did not constitute an internal provision of Article 14 of the Act.

However, since mineral resources are basic resources used as the foundation of industry and have a significant impact on the national economy, and they are buried in national land, it is necessary to establish mining rights under the involvement of the State. Once a mining right is established, it is necessary to induce the development of mineral resources which belong to the foundation according to the purport of the establishment of mining rights, and the cancellation of mining rights under Article 40 (2) 1 of the Act is aimed at prompt adjustment of idle mining rights in order to prevent idleization or separation of rights by holding the mining rights under the pretext without developing the mining rights for a long time upon registration of establishment of mining rights as required (see Supreme Court Decision 96Gu10102 delivered on September 9, 197). Although the court below did not explain the public interest to be achieved by the disposition of this case, the court below did not err by comparing the above public interest and the disadvantage suffered by the plaintiff due to the above disposition of this case, and by comparing it with the records of the court below's determination that there were no errors in the misapprehension of legal principles as to the above disposition of mining rights or abuse of discretionary rights.

Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jong-chul (Presiding Justice)