Hyundai Industrial Development Co., Ltd. (Attorney Park Chang-hoon, Counsel for defendant-appellant)

Seosan City (Attorney Lee Han-cheon, Counsel for the defendant-appellant)

may 26, 2005

Daejeon District Court Decision 2003Guhap3187 Delivered on May 12, 2004

1. Revocation of a judgment of the first instance;

2. The defendant's disposition of denying the development activities against the plaintiff on October 2, 2003 is revoked.

3. All costs of the lawsuit shall be borne by the defendant.

It is as set out in paragraphs 1 and 2 of this Decree.

1. Details of the disposition;

The following facts may be acknowledged by adding up the whole purport of the pleadings to the descriptions of evidence Nos. 4-1, 2, and 18-1.

A. On October 14, 2002, the Plaintiff entered into a contract with the Republic of Korea (the competent authority) for the construction work of the construction work of the 1-level mountain harbor development project of the 1-level mountain harbor unit located in the Seosan-si (hereinafter “instant construction work”) and performed the said construction work from that time. The completion completion completion of the said construction work is June 30, 2005.

B. As a result of a geological survey to secure building stones necessary for the instant construction project, the Plaintiff confirmed that the building stones were buried in the area of 8-44 square meters in Seosan-si, Seosan-si, Seosan-si, Busan-si, 19,512 square meters in the area adjacent to the said construction site, 8-45 square meters in the area of 8-46 square meters in the same Ri, 19,512 square meters in the area of 8-46 square meters in the same Ri, 8-47 square meters in the same Ri, 19,512 square meters in the area of 8-48 square meters in the same Ri, 8-48 square meters in the same Ri, 8-49 square meters in the same Ri, 31,119 square meters in the same area (hereinafter referred to as the “instant land”) under the provisions of Article 20 of the former National Land Planning and Utilization Act (amended by Act No. 6513, Sep. 16, 2003>

C. On October 2, 2003, the Defendant did not comply with the provisions of Article 58(1) of the National Land Planning and Utilization Act and Article 56(1) of the Enforcement Decree of the same Act, and the land in this case is not in line with the provisions of Article 2 subparag. 7 of the former Natural Environment Conservation Act (amended by Act No. 7167 of Feb. 9, 2004), and is in line with the provisions of Article 2 subparag. 7 of the Forestry Act (amended by Act No. 7167 of Feb. 9, 2004), where the conservation of the land in this case inhabits in group, and where the act of collecting earth and rocks is conducted, the green axis formed by the coastline is cut off, and there is about 70 meters of the ground that the act of collecting earth and rocks is likely to fall within the scope of the area where the permission of this case was made, and the act of collecting soil and rocks is destroyed or deteriorated from the area where the permission of this case was made within the scope of the first harbor zone.

2. The plaintiff's assertion

① The Plaintiff asserts that the land in this case is not a group of trees, and that it is not a group of trees, ② the green axis is not cut, ③ it is planned to collect stone in stairs, and thus it is necessary to maintain a perfect slope and minimize impacts on scenic view. ④ It is unlikely to affect marine ecosystems because earth and sand is prevented by planting tidal waves after collecting earth and rocks and constructing hacks net, and ⑤ it is planned to collect earth and stone in the part below forest roads among the land in this case, the function of forest roads is maintained, and the disposal of the land in this case is likely to be done in the vicinity of the land in this case, and it is not a rare plant, and it is inevitable that the land in this case will be reclaimed in the vicinity of the land in this case, and it is inevitable to affect the habitats of the beginning of the local economy, and that it constitutes an exception to the provisions of Article 18 of the former Enforcement Decree of the Forestry Act, even if the land in this case constitutes a restricted area for quarrying under the provisions of Article 98 of the former Enforcement Decree of the Forestry Act (amended by Presidential Decree).

3. Related statutes;

It is as shown in the attached Form.

4. Determination

(a) Facts of recognition;

The following facts are as follows: Gap evidence 1, evidence 3-1, evidence 3-2, evidence 4-3, evidence 5-1, evidence 10-1, evidence 10-1, evidence 13-2, evidence 14-1, 3, evidence 15, evidence 16, evidence 17-1, evidence 23-1, evidence 25-2, evidence 15-4, Eul evidence 19-1, evidence 3-3, evidence 34, evidence 35-1, evidence 10-1, evidence 13-2, evidence 20-3, evidence 20-4, evidence 21-2, evidence 23-2, evidence 3-4, evidence 19-1, evidence 31-3, evidence 34, evidence 35-1, evidence 1-2, evidence 20-3, evidence 21-4, evidence 21-2, and evidence 3-2, evidence 1-2, evidence 3-2, evidence 4-1

(1) The instant land is part of the north-west surface of the Clsan City (167.9m in the Yellow Sea) and adjacent to the sea, and is part of the green area leading to the coastline to the mountain chemical industrial complex from the Clsan City Port to the mountain chemical industrial complex, or a place where the surrounding natural environment may not be deemed to have been particularly able compared to other areas of the Republic of Korea.

(2) The instant construction project mainly constitutes part of the plan to develop a mountain port that constructs a harbor by reclaiming the sea adjacent to the north of the instant land. It is essential to ensure the smooth supply of stone does not interfere with the construction of the instant land. Although the sea adjacent to the instant land is not buried at present, it is expected that 700 meters will be reclaimed from the coastline adjacent to the instant land in consecutive order by 201.

(3) According to the business plan submitted by the Plaintiff to the Defendant, there is a 70m height of rock walls up to the maximum height of 70 meters after completion of quarrying work from the instant land. The Plaintiff, while maintaining the slope of the said gate at 45% through 60%, installed three meters per ten meters, thereby having the shape of a stairs. Of the total project district area of 82,220m square meters, the legal plane part of the slope of 38,500m square meters, among the slope area of 82,220m square meters, shall be recorded with green soil, etc., and the small gate shall be planted in the small gate, and the small gate shall be planted in the 43,720m square meters, and the remaining 43,720m square meters.

(4) Forest roads are built within a range of 85m or 100m in the instant land. According to the Plaintiff’s business plan, the Plaintiff is expected to collect stone only within a range of 10m or 80m or 10m or less in the surface of the instant land.

(5) The instant land is a green conservation area under the urban management plan where pine trees and active trees are mainly involved, and its average standing timber stable volume is merely 5.23 cubic meters/ha, which is the average volume of standing timber reduced at Seosan City, 57 cubic meters/ha, which is 61.8% of the average volume of standing timber reduced at Seosan City.

(6) Although the passage of the coastline 40 meters away from the east border of the land in this case forms the top door, it is difficult to view it as a group of ancient banks because there are many people living in the rock wall and many people already with death. Meanwhile, as a plant mainly living in the trokes of a large damp field, ancient banks were exposed to drinking water, and it was designated as a protected wild fauna under the former Natural Environment Conservation Act, but it was excluded from the protected wild fauna and flora protection act, which was enacted on February 9, 2004 and enforced on February 10, 2005, were widely distributed across the country and took effect on February 10, 2005, and the order of relative preservation was low. After reviewing the designation of the wild fauna and flora in Chungcheongnam-do as the protected wild fauna and flora in order to protect the wild fauna and flora in order to make a request after consultation with related experts, it is reasonable to designate it as the protected wild fauna and flora in accordance with the procedure of consultation.

(7) In the future of the instant land, a concrete package with a width of about 10 meters is opened according to the coastline, and even if quarrying operations are conducted on the instant land, the risk of being flown into the sea due to the loss of soil is not high.

(8) According to the national basic harbor plan prepared by the Minister of Oceans and Fisheries on December 15, 2001, the land of this case is located in a Si area within 2,000 meters from the service route zone of the Ulsan Port, which is an open port, but the service route reflected in the basic harbor plan is scheduled to be designated and publicly announced as a service route as prescribed by the Public Order in Open Port Act at the time when the construction of a harbor is underway and the ship enters or departs from a port.

(9) On April 9, 200, the Daesan Regional Maritime Affairs and Fisheries Office (the Ministry of Maritime Affairs and Fisheries as amended by Presidential Decree No. 17078, Dec. 30, 200; the special local administrative agency established under the organization of its affiliated agencies) sent a public notice stating the location and size of the new stone production, the kind, quantity, collection period, and collection period of the stone in the land in this case as there is a request for the Defendant to develop the stone in this case to treat it well, and thereafter, the Defendant’s request for review on the case of permission for the collection of stone in this case was made on Sep. 27, 2003 due to imbalance in the supply of and demand for stone as major materials, cooperation with material transport, various kinds of promotions, etc., so that the Plaintiff could cooperate in the development of the stone in the land in this case to efficiently promote the project in this case.

(10) In the construction work in the Daesan Port, the Plaintiff, as well as the Silsan Construction Co., Ltd. are participating in the construction work, and the above companies are supplied with stone from the head of a stone collection station that was operated with a permit from the Defendant in 4-1 and 4-16, Seosan-si, Seosan-si, Seosan-si, Seosan-si, Seosan-si, but the amount of permission for the collection of stone from the above stone collection station is 871,540 cubic meters, which is 871,540 cubic meters and did not exceed 9,304,040 cubic meters.

(11) For the purpose of securing the distribution-oriented center in the west coast in the Republic of Korea, as a project being implemented after October 15, 2002 with a budget of KRW 437.389 billion in the total project cost as a result of the completion of the 2011, Seosan-si, Seosan-si, Busan-si. The project is expected to function as a specialized motor vehicle complex, resource reserve complex, local industrial complex, modern petroleum chemical, etc. located in the surrounding area, and as a logistics base of the Steel Corporation located in Jin-si. The project is now expected to function as a small-scale industrial complex located in the surrounding area, such as a chemical complex, resource reserve complex, and modern petroleum chemical located in the surrounding area, and as a logistics base of the Steel Corporation located in Jin-si.S., the occupancy of the above industrial complex is delayed due to the lack of a general cargo terminal facility other than a oil wharf (ro station) used by three companies in the middlewest coast in the Republic of Korea, but it is anticipated that the construction-do committee will submit its construction report 20.

(12) After completion of quarrying in the instant land during the course of the instant quarrying, the Plaintiff expressed his intention to contribute 3,000 square meters in letter, which was around 10,000, which was created by quarrying operations, to the Defendant as a site for the highly-related ecological park, which was located in the area of the highly-related ecological park, and expressed his previous opinion that if there was such contribution, it would be better to use it as the highly-established ecological park.

B. Determination

(1) According to Article 56(1)3 of the National Land Planning and Utilization Act, the collection of earth and stones shall be permitted by the head of Si/Gun with the permission of the head of Si/Gun, and Article 58(1)4 of the same Act and Article 56(1)1 of the Enforcement Decree of the same Act, the head of Si/Gun shall grant the permission only where the contents of the application for the permission of development activities are in harmony with the surrounding environment or scenery. In such a case, there is no need for preservation, as the place of the application for the permission is not in harmony with the surrounding environment or scenery, and there is no damage to the surrounding natural landscape and scenery, and the permission of development activities is required only where the relevant area and its surrounding areas are likely to cause environmental pollution, ecosystem destruction, damage, etc. due to the development activities, and the green axis is not cut.

In addition, as the Mountainous Districts Management Act was enforced on October 1, 2003, the permission of the head of Si/Gun shall be obtained pursuant to the provisions of Article 90-2 of the former Forestry Act (Article 3 subparagraph 5 of the Addenda to the Mountainous Districts Management Act, since the above provision was already invalidated at the time of the disposition of this case as the Mountainous Districts Management Act was enforced on October 1, 2003, but there was an application for permission for quarrying on September 26, 2003, before the enforcement of the above Act. In this case, the permission for quarrying is restricted (Article 91-5 (5) of the former Forestry Act), and areas within 100 meters from Si/Gun/Dong coastline from the harbor zone under the Harbor Act and service route under the Public Order in Open Ports Act, and the head of the relevant central administrative agency (including the head of a special local administrative agency under the provisions of Article 3 of the Government Organization Act) to use for public works, if the permission for quarrying is exceptionally specified and deemed reasonable (Article 56 of the former Forestry Act).

(2) In light of the form and purport of the above-mentioned related provisions, permission to collect earth and stones in forests is not related to the prohibited or restricted areas under the law, but the permission-granting authority may determine whether to grant permission by comparing and comparing the interests of the persons involved.

The court shall examine only whether the disposition is a deviation or abuse of discretionary power, and the examination of such deviation or abuse of discretionary power shall be subject to the determination of mistake of facts, violation of the principle of proportionality and equality, violation of the purpose of the act, or the denial of the motive, etc., and where the disposition is contrary to the principle of proportionality in balancing the interests of those who are erroneous of facts or related to the disposition, the disposition is illegal.

(3) According to the facts found earlier, when quarrying work on the instant land is performed in accordance with the Plaintiff’s business plan, it is deemed that the surrounding natural landscape might be harmed even if the Plaintiff completed recovery as set out in the Plaintiff’s business plan, even if it is deemed that the green axis formed in accordance with the coastline was cut to a certain extent, and that it also would hinder the high-sea breeding environment near the instant land.

(4) However, although the land of this case is a green belt, it is difficult to say that there is no significant impact on the growth of the natural environment of this case on the ground that there are 3 kinds of trees and active trees, etc., and that there is no need to conserve the natural environment compared to other areas in Korea (the defendant asserts that there is a variety of trees such as rush, rush, streak, streak, streak, etc. in the application of this case, and that there is no evidence to recognize it as such). (2) Even if the plaintiff completes quarrying pursuant to its project plan and restores the land of this case, it is difficult to find that there is no possibility that there is no possibility that there is no possibility that there would be any possibility that there would be any danger that there would be any possibility that there would be any danger that there would be any possibility that there would be any possibility that there would be any change in the surrounding area of the land of this case in front of the development plan of this case, because it is installed on the land of this case.

(5) In addition, although the land of this case is located within 100 meters from the coastline, as seen above, since the coastline prior to the land of this case is expected to be reclaimed within 700 meters in the future, the fact that the land of this case is located within 100 meters from the coastline is not so significant. The land of this case is likely to be located within the port area under the Harbor Act and within the city area within 200 meters from the harbor area under the Public Order in Open Ports Act if the land of this case is located within the port area under the construction, and within the city area within 2,00 meters from the harbor area and route area as above, it is deemed to be necessary to preserve the landscape of the harbor and adjacent area within 2,00 meters from the coastline. Thus, it is not reasonable for the defendant to take into account whether the permission of collecting stone of this case is in harmony with the surrounding environment or landscape under Article 58 (1) 4 of the National Land Planning and Utilization Act, but it is not reasonable for the defendant to claim that it is within the area of collecting stone of this case.

(6) The purpose of this case's disposition is to conserve the aesthetic view of the land of this case and to prevent harm to the natural environment. However, as seen above, quarrying is not more than 10% of the total stone amount required for the above quarrying development project with the permission of Seosan City, and to complete the construction of this case without any delay, it is necessary to ensure the smooth supply of stone necessary for the above development project. Accordingly, in order for the plaintiff to waive quarrying from the land of this case and find new place for quarrying, it is anticipated that a considerable time will be required for the plaintiff to request quarrying again after completion of geological surveys and environmental surveys. If the construction of this case's land is implemented, it is likely that the construction of this case's natural environment will be delayed due to the plaintiff's failure to complete construction due to the delay of the construction of the land of this case, and it is likely that the construction of this case's natural environment would be less likely to cause damage to the plaintiff as a whole to the development plan of the national economy of this case's land of this case.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be quoted on the grounds of its reasoning, and the judgment of the court of first instance is unfair on the grounds of its conclusion and the plaintiff's appeal is reasonable, so the judgment of the court of first instance shall be revoked and the disposition of this case shall be revoked as per Disposition

Judges Cho So-young(Presiding Judge)(Presiding Judge)