(영문) 광주지방법원 2014.10.30. 선고 2013재구합11 판결

1. All of the lawsuits filed in the retrial of this case and the lawsuits filed in the claim for damages are dismissed. 2. Costs of lawsuit are assessed against the plaintiff (the plaintiff).

Purport of claim and review

1. Purport of claim

A disposition of non-permission for the establishment of a mining right by the Defendant (Re-Defendant, hereinafter only referred to as the Defendant) on May 19, 201 and on May 20, 201 and on May 20, 201, respectively, shall be revoked.

2. Purport of request for retrial;

A. The decision subject to a retrial shall be revoked.

B. It is identical to the purport of the claim.

C. The defendant shall pay 48,00,000 won to the plaintiff (hereinafter only the plaintiff) and 20% interest per annum from the day following the delivery date of the petition for retrial of this case to the day of full payment.

Reasons

1. Determination of the original judgment

The following facts are neither disputed between the parties nor clear in records:

A. On June 26, 2012, the Plaintiff filed a lawsuit against the Defendant seeking revocation of each of the dispositions stated in the purport of the claim (hereinafter referred to as “each of the instant dispositions”) with the Gwangju District Court 2012Guhap2849, and the said court rendered a judgment dismissing the instant lawsuit on the ground that, on February 7, 2013, the Plaintiff is the party subject to each of the instant dispositions upon filing an application for establishment of mining rights with the Defendant, and the Plaintiff cannot be deemed to have legal interest in seeking revocation of each of the instant dispositions, solely on the ground that the Plaintiff is the actual holder of mining rights or the agent of E, and thus, the Plaintiff was served with the said judgment on February 25, 2013.

B. On March 6, 2013, the Plaintiff appealed and submitted a petition of appeal to the foregoing court, but failed to comply with the order of correction of recognition and delivery fees. On March 25, 2013, the said court ordered the Plaintiff to dismiss the petition of appeal on the ground that the Plaintiff did not make any correction of recognition and delivery fees within the prescribed period. The Plaintiff again appealed against the order of rejection of the said petition of appeal on April 4, 2013, and filed a complaint with Gwangju High Court 2013Ra2, the said court dismissed the Plaintiff’s appeal on November 29, 2013. The said court rejected the Plaintiff’s appeal on the ground that the Plaintiff’s appeal was dismissed on December 20, 2013; however, the said court filed a reappeal to the said court on December 24, 2013, which became final and conclusive on the ground that the said reappeal was dismissed on the grounds that it was unlawful.

A. The plaintiff's assertion

1) Existence of grounds for retrial under Article 451(1)9 of the Civil Procedure Act

The plaintiff filed an objection against each of the dispositions of this case in the name of the plaintiff, and the administrative appeals procedure, such as attending a meeting for the establishment of mining rights, was conducted on the premise that the plaintiff is a claimant, and such facts were recognized by evidence. Thus, despite the legal interest to seek revocation of each of the dispositions of this case, the judgment subject to retrial of this case did not render a decision on this part. This constitutes grounds for retrial under Article 451(1)9 of the Civil Procedure Act, by omitting a decision on important matters that may affect the judgment.

2) Claim for damages

In order to develop a mining right, the Plaintiff filed an application for the establishment of a mining right with title trust with E, and confirmed that minerals exist within each mining area as stated in the purport of the claim (hereinafter referred to as "each mining area of this case") and the Defendant conducted a field investigation despite having been granted the establishment of a mining right without a field investigation pursuant to Article 11 of the Enforcement Decree of the Mining Industry Act. In the process of analyzing the mineral ingredients of mineral samples extracted from each mining area of this case, the Defendant mixed other mineral samples, and made each disposition of this case as the recovered mineral samples fall short of the dignity publicly notified by the Minister of Knowledge Economy.

As a result, the defendant has a duty to compensate the plaintiff for damages, since the defendant suffered losses from the plaintiff's use fee of 48,00,000 won for the ship necessary for the collection of samples and for the equipment.

B. Relevant statutes

It is as shown in the attached Form.

3. Whether the lawsuit in this case is lawful

A. Whether part of the request for retrial is lawful

We examine ex officio whether the period allowed for the retrial of this case is expired.

According to Article 456(1) and (2) of the Civil Procedure Act, a lawsuit for retrial shall be filed within a peremptory period of 30 days from the date when the party becomes aware of the grounds for retrial after the judgment becomes final and conclusive, and the existence of grounds for retrial, which is "when the party fails to make a decision on important matters that may affect the judgment" under Article 451(1)9 of the Civil Procedure Act, is deemed to have known when the party was served with the original copy of the judgment subject to retrial, barring special circumstances (see, e.g., Supreme Court Decision 2006Du90, Jan. 11

In light of the aforementioned legal principles, the Plaintiff ought to be deemed to have known on February 25, 2013, which was the date on which the Plaintiff was served with the reason for omitting judgment. However, it is evident that the instant lawsuit for retrial was filed on March 12, 2013, which became final and conclusive after the Plaintiff became aware of the grounds for retrial, and was filed on December 30, 2013.

Therefore, the instant lawsuit for retrial is unlawful as it was filed after the lapse of the period under Article 456(1) of the Civil Procedure Act.

B. Whether the damages claim part is lawful

In light of the records, the plaintiff filed a lawsuit for retrial of this case and filed a new claim for damages as stated in the purport of the request for retrial by combining the lawsuit for retrial of this case. However, filing a new claim by combining the lawsuits for retrial of this case cannot be permitted (see, e.g., Supreme Court Decisions 96Da41649, May 28, 1997; 2009Da41977, Sept. 10, 2009). Such new claims should be brought separately.

Therefore, the claim for damages of this case shall be dismissed as unlawful.

4. Conclusion

Therefore, since the plaintiff's lawsuit of retrial and claim for damages are unlawful, it is decided to dismiss all of the lawsuits. It is so decided as per Disposition.

Judges

The presiding judge, the Park Judge;

Judges Park Sung-nam

Judges Shin Shin-il

Note tin

1) Article 498 of the Civil Procedure Act provides that a judgment may be lodged within the period during which an appeal may be filed or when a lawful appeal is filed within such period.

Since the plaintiff filed an appeal as seen earlier, but the appeal is unlawful.

order to dismiss the petition of appeal has been issued and the order has become final and conclusive, it shall be the same as the first appeal has not been filed.

The judgment becomes final and conclusive after the lapse of the litigation period.