[1] The time when the duty to recover a mountainous district is established for a person who obtained permission to divert a mountainous district under the Mountainous Districts Management Act

[2] In a case where an administrative agency made a written disposition, whether it can be interpreted as including a disposition different from the language and text of the written disposition, even though it is clear whether the administrative agency made a certain disposition (negative)

[1] According to Articles 39(1)1 and 40(1) of the Mountainous Districts Management Act, a person who has obtained permission to divert a mountainous district pursuant to Article 14(1) of the Mountainous Districts Management Act shall restore a mountainous district within a given period when the purpose of the mountainous district conversion is completed or the period of mountainous district conversion expires, with the approval from the competent authority for recovery and design within a given period. As such, where a project is completed or the period of mountainous district conversion expires, a person is obliged to recover a mountainous district first if a ground exists during the completion of the purpose of the mountainous district conversion or the period of mountainous district conversion. Meanwhile, in light of the purport and purpose of the system of permission to divert a mountainous district and the purpose of the project is to construct a building, the scope of mountainous district recovery is sufficient only for the restoration of a cut, filled, or sloped land after the completion of the construction project, but

[2] In cases where an administrative agency takes a disposition through a document, barring special circumstances, such as where the language and text of the written disposition is unclear, it shall be determined in accordance with the language and text of the written disposition, and even though the language and text of the written disposition clearly indicate what disposition the administrative agency has taken, it shall not be interpreted extensively as including any other disposition, unlike the language and text of the written disposition, in light of other circumstances, such as the background of the disposition

[1] Articles 39(1)1 and 40(1) of the Management of Mountainous Districts Act / [2] Article 24(1) of the Administrative Procedures Act

[1] Supreme Court Decision 2009Du18035 Decided February 11, 2010 (Gong2010Sang, 578) / [2] Supreme Court Decision 2003Du469 Decided July 28, 2005 (Gong2005Ha, 1433)

Plaintiff 1 and one other

port of destination

Seoul High Court Decision 2015Nu61605 decided May 31, 2016

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

The grounds of appeal are examined.

1. According to the reasoning of the lower judgment and the reasoning of the first instance judgment partially accepted by the lower court, the lower court acknowledged the following dispositions: (a) around July 1, 2013, the Defendant submitted a restoration plan to the Plaintiffs by no later than August 30, 2013, and notified the Plaintiffs that the restoration work should be completed and the completion of the restoration work should be completed according to the details approved by no later than October 31, 2013; (b) the Plaintiffs submitted a restoration plan, based on the premise that the project called “construction of the site” in the housing and warehouse was completed; and (c) on October 29, 2013, on the premise that the instant land becomes invalid by the expiration of the period of permission for conversion of a mountainous district and becomes invalid as a forest; and (c) on the ground that the application is subject to the approval of restoration design for the purpose of restoration (housing and warehouse) as a return of each of the instant applications filed by the Plaintiffs on the grounds that the application is subject to each of the instant dispositions.

Furthermore, the lower court determined that each disposition of the instant case was unlawful on the ground that, as long as the period of conversion of each of the instant mountainous district was expired and the Plaintiffs’ duty to recover mountainous district was not completed, each of the instant mountainous district conversion approval applications cannot be returned.

2. A. According to Articles 39(1)1 and 40(1) of the Mountainous Districts Management Act, a person who has obtained permission to divert a mountainous district pursuant to Article 14(1) of the Mountainous Districts Management Act shall restore a mountainous district with the approval of recovery design from the competent authority within a given period when the purpose of the diversion of a mountainous district is completed or the period of conversion expires, and thus, if any ground exists during the completion of the purpose of the diversion of a mountainous district or the period of conversion of a mountainous district, the person is obliged to recover the mountainous district at the time when the purpose of the diversion of a mountainous district is completed (see Supreme Court Decision 2009Du18035, Feb. 11, 2010). Meanwhile, considering the intent and purpose of the system for conversion of a mountainous district, if a building is constructed, the scope of recovery of a mountainous district is sufficient solely for the recovery of the relevant mountainous district upon completion of construction works, but the provisions of Article 14(1)15 of the Enforcement Rule of the Mountainous Districts Management Act should be deemed to require the entire period of the mountainous district subject to be permitted or reported.

In addition, barring special circumstances such as the uncertainty of the language and text of the written disposition, in a case where an administrative agency made a disposition through a document, it shall be determined to determine which disposition is made in accordance with the language and text of the written disposition, and even though the language and text of the written disposition clearly indicate the existence of any disposition by the administrative agency, it shall not be interpreted extensively as including any other disposition differently from the language and text of the written disposition in consideration of other circumstances such as the background of the disposition or the attitude of the other party after the disposition (see Supreme Court Decision 2003Du469, Jul. 2

B. Examining the factual relations in light of the aforementioned legal principles, the instant disposition is interpreted to the effect that “the duty to recover mountainous districts has not occurred due to the failure to complete the intended project,” rather than “the duty to recover mountainous districts,” and “the partial recovery plan premised on the completion of the intended project, even if the entire land was demanded to recover mountainous districts due to the expiration of the period of mountainous district conversion.” Therefore, the lower court erred by construing the instant disposition as “the duty to recover mountainous districts due to the failure to complete the intended project,” and immediately concluding that each of the instant dispositions was unlawful.

However, the reasoning of the lower judgment and the evidence duly admitted by the lower court, i.e., ① the purpose of changing the form and quality of each of the instant permission for mountainous district conversion stated “Housing site” or “Housing and Warehouse Site”; and there is no reference as to “construction” as well as the incidental conditions attached to each of the instant permission for mountainous district conversion; ② each application for permission for mountainous district conversion and extension submitted by the Plaintiffs at the time stated “Housing Site Creation” or “Housing and Warehouse Site Creation” as the contents of the land use plan and the land use plan submitted by the Plaintiffs along with the project plan and the land use plan were simply stated “construction outline” and the specific construction plan and construction design are not attached. Accordingly, the instant permission for mountainous district conversion should be deemed to fall under the case where each of the instant permission for mountainous district conversion was completed, and thus, it should be deemed that each of the instant permission for mountainous district conversion was unlawful on the grounds that each of the instant permission for mountainous district conversion was “building site construction” or “building site creation” of housing and warehouse site. Therefore, the Plaintiffs’ respective application for permission for mountainous district conversion should not be deemed unlawful.

Therefore, there are some inappropriate parts in the reasoning of the judgment below, but the court below accepted the plaintiffs' claim on the grounds that each of the dispositions of this case was unlawful. In so doing, the court below did not err by misapprehending the legal principles on the scope of duty

3. 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 on the bench.

Justices Jo Hee-de (Presiding Justice)