The scope of validity of mining rights and whether the removal of public structures on the surface of the mining area can be sought based on mining rights (negative)

The mining right is a right to mine and acquire minerals registered in a registered land zone from the underground, but it is only a right to exclusively and exclusively extract and acquire underground minerals, and it cannot be viewed that the mining right has an effect on the surface of the land. Therefore, a mining right holder shall not obtain the right to use the land upon entering into a contract under private law with the land owner for the use of the ground surface, or obtain the right to use and expropriate the land upon approval by the Minister of Trade, Industry and Energy pursuant to the provisions of Articles 86 through 89 of the Mining Industry Act, and a mining right holder shall not seek the removal of the public structures installed in the ground surface of the mining area based on a legitimate title unless there is another exclusive right to use the ground surface.

Articles 5, 86, 87, 88, and 89 of the Mining Industry Act

Dajin (Attorney Yoon-jin, Counsel for the defendant-appellant)

Korea Electric Power Corporation (Attorney Lee Byung-il, Counsel for defendant-appellant)

Seoul High Court Decision 93Na12444 delivered on November 3, 1994

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

The grounds of appeal by the attorney are examined.

The mining right is a right to mine and acquire registered minerals from the underground in a registered land zone (mining area) but it is only a right to exclusively and exclusively extract and acquire underground minerals, and it cannot be viewed that the mining right is effective as a matter of course to the ground surface. Therefore, for the owner of a mining right to use the ground surface, the owner of a mining right shall not obtain the right to use the land by entering into a contract under private law with the owner of the land, or obtain the right to use and expropriate the land by obtaining the recognition of the Minister of Trade, Industry and Energy pursuant to the provisions of Articles 86 through 89 of the Mining Industry Act, and the mining right holder shall not seek the removal of public structures established on the ground surface of a mining area based on a legitimate title unless there is any other exclusive right to use the ground surface.

According to the reasoning of the judgment below, since the establishment of mining rights under the name of the non-party 1 was completed on August 6, 198 with respect to the forest land owned by Pyeongtaek-gun, the court below decided that the mining right of the plaintiff was transferred under the name of the non-party 2 and the non-party 3 on September 3, 1990, and that the mining plan was approved on September 29, 198. The Minister of Power and Resources Affairs announced the execution plan for electric power resource development business of this case to the defendant on April 12, 198 as stipulated in Article 5 of the Act on Special Cases Concerning Electric Power Resource Development and Article 26 of the Enforcement Decree of the same Act, and the mining right of the non-party 1 was no longer effective as the mining right of the non-party 2 and the mining right of the non-party 3 against the non-party 1 to whom the mining right of this case was removed by the non-party 2 and the non-party 1 to whom the mining right of this case was lawfully established.

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

Justices Park Jong-ho (Presiding Justice)