[1] The purpose of amendment of Article 38 (2) of the Enforcement Decree of the New Mining Act

[2] Whether a mining right can be cancelled pursuant to Article 40(2)1 of the Mining Industry Act when a business has been discontinued for more than one year even in cases where there is a reason for not being able to continue mining due to the lack of authorization or permission pursuant to other Acts and subordinate statutes (affirmative), and whether such interpretation violates Article 23 of the Constitution (negative)

[3] Whether the provision on the scope of idle land under the Land Excess Profit Tax Act can be applied mutatis mutandis to idle mining rights (negative)

[1] Article 38 (2) of the Enforcement Decree of the Mining Act (amended by Presidential Decree No. 14424 of Dec. 8, 1994), which was amended by Presidential Decree No. 14424, deleted "where authorization or permission under other Acts and subordinate statutes required for commencement of business cannot be obtained, unlike before the amendment, as the grounds for authorization for suspension of business under Article 45 (3) of the same Act," unlike before the amendment, the grounds for extension of the term of mining rights and the grounds for postponement of commencement of business have been reduced compared to the transfer (Articles 3 (1) and 38 (1) of the same Act). The period of suspension of business and the period of suspension of business have been reduced (Article 39 (3) of the same Act), which are the basis for cancellation of mining rights, are also reduced (Article 34 (1) of the same Act). In addition, the purpose of the amendment of Article 38 (2) of the same Decree is to strengthen ex post facto management and induce the development of minerals for a long time, and prevent idleization of mining rights.

[2] It is reasonable to view that the mining right can be cancelled under Article 40 (2) 1 of the Mining Industry Act when the mining business is discontinued for more than one year even in cases where there is a reason for not being able to continue mining due to the impossibility of obtaining authorization or permission under other Acts and subordinate statutes. The application of the provisions on the cancellation of mining right under Article 40 (2) 1 of the same Act cannot be excluded even if the obligation to obtain authorization on the suspension of business under Article 45 (3) of the same Act is exempted, or the business is discontinued for more than one year without the suspension of business, and such interpretation does not violate the provisions on the guarantee of property right under Article 23 of the Constitution.

[3] The Land Excess Profit Tax Act is an Act with the purpose of recovering land excess profit gained by its owner as a tax due to the increase of land price such as idle land. Thus, even though Article 12(1) of the Mining Industry Act provides that "mining rights shall be real rights, and except as otherwise provided in this Act, the provisions of the Civil Act and other Acts and subordinate statutes concerning real estate shall apply mutatis mutandis to mining rights by nature, and the provisions of the Land Excess Profit Tax Act shall not apply mutatis mutandis to mining rights, and therefore, Article 8(1)7(e) of the Land Excess Profit Tax Act provides that the forest located within the natural environment district under the Natural Parks Act shall be excluded from idle land, on the ground that the relevant mining right located within the natural environment district under the Natural Parks Act shall be excluded from the idle mining right under Article 45 of the Mining Industry Act, and thus, Article 40(2)1 of the Mining Industry Act, which provides for the grounds for revocation of mining rights, shall not be applicable.

[1] Articles 40(2)1 and 45(3) of the Mining Industry Act, Articles 3(1), 34(1), 38(1) and (2), and 39(3) of the Enforcement Decree of the Mining Industry Act (amended by Presidential Decree No. 14424, Dec. 8, 194); Articles 40(2)1 and 45(3) of the Mining Industry Act / [2] Articles 40(2)1 and 45(3) of the Mining Industry Act; Article 23 of the Constitution of the Republic of Korea / [3] Articles 12(1), 40(2)1 and 45 of the Mining Industry Act; Article 8(1)7(e) of the Land Excess Profits Tax Act; Article 23(1)3 of the Natural Parks Act

Plaintiff (Dongba General Law Firm, Attorneys Song Byung-gun et al., Counsel for the plaintiff-appellant)

The head of the Mining Registration Office

Seoul High Court Decision 95Gu27587 delivered on June 4, 1996

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

We examine the grounds of appeal.

1. Article 40 (2) 1 of the Mining Industry Act (hereinafter referred to as the "Act") provides that mining rights may be cancelled when operations are continuously suspended for not less than one year in violation of the provisions of Article 45 (3). Article 45 (3) provides that when mining right holders intend to continue operations for not less than one year, they shall obtain the approval of the Minister of Trade, Industry and Energy for a fixed period of not less than one year. Article 38 (2) of the Enforcement Decree of the Mining Industry Act as amended by Presidential Decree No. 14424 of December 8, 1994 provides that mining right holders shall continue operations for not less than 1 year. Article 40 (1) 1 of the Act provides that mining right shall not be cancelled for a long period of not less than 3 years because of the revision of the above Act and Article 45 (3) of the Enforcement Decree of the Mining Industry Act provides that the grounds for suspension of operations for the purpose of Article 35 (1) of the Act or the grounds for suspension of operations for not less than 1 year after the revision of the Act.

In the same purport, the court below is just in holding that the disposition to revoke the mining right of this case is legitimate, inasmuch as the plaintiff was subject to suspension of business until May 8, 1994, but failed to suspend business for not less than one year thereafter, and there is no error of law such as misunderstanding of legal principles as to revocation of mining right due to suspension of business

2. Article 12(1) of the Mining Industry Act provides that "No mining right shall be a real right and the provisions of the Civil Act and other Acts and subordinate statutes concerning real estate shall apply mutatis mutandis except as otherwise provided in this Act," and the provisions of Article 8(1)7(e) of the Land Excess Gains Tax Act provides that the provisions of the Land Excess Gains Tax Act shall not apply mutatis mutandis to the mining right by nature, and therefore, the nature of the provisions of Article 8(1)7(e) of the Land Excess Gains Tax Act provides that the forest located within the natural environment district under the Natural Parks Act shall be excluded from the idle land, on the ground that the mining right of this case located within the natural environment district under the Natural Parks Act shall be excluded from the idle mining right under Article 45 of the Mining Industry Act, and thus, Article 40(2)1 of the Mining Industry Act, which provides for the grounds for revocation of the mining right, shall not apply to the mining right.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to Article 12 (1) of the Mining Industry Act or incomplete hearing.

3. 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 Lee Im-soo (Presiding Justice)