The meaning of “road, the completion inspection of which was not completed but which is actually possible to pass” as prescribed by Article 20(6) [Attachment Table 4] subparag. 1(e)(b) of the former Enforcement Decree of the Management of Mountainous Districts Act / Whether permission for mountainous district conversion is necessary in cases where a forest road which is a mountainous district is used as a road provided for general traffic beyond the purpose of a forest road (affirmative)

Subparagraph 1, subparagraph 2, subparagraph 3, Article 14(1), and Article 18(5) of the former Management of Mountainous Districts Act (Amended by Act No. 11690, Mar. 23, 2013); Article 20(6) [Attachment Table 4] [Attachment 1] subparagraph 1(e) of the former Enforcement Decree of the Mountainous Districts Management Act (Amended by Presidential Decree No. 24059, Aug. 22, 2012)

Supreme Court Decision 2012Du9932 Decided February 13, 2014 (Gong2014Sang, 605)

농업회사법인 팜앤팜스 주식회사 (소송대리인 법무법인 이우스 담당변호사 오세욱 외 7인)

Jindo-gun (Law Firm Barun Law, Attorneys Kim Yong-il et al., Counsel for the plaintiff-appellant)

Gwangju High Court Decision 2013Nu146 decided November 28, 2013

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

The appraiser's appraisal result shall be respected unless there is a significant error such as the appraisal method against the rule of experience or unreasonable (see Supreme Court Decision 96Da1733 delivered on February 11, 1997, etc.).

The lower court accepted the appraisal result of the Korea Landscaping Technology Evaluation Office, Inc., an appraiser, and determined that the standing timber reduction rate in the instant application area was 145.16% below the average standing timber reduction rate per ha of Jindo-gun, which is below 150%.

In light of the above legal principles and records, the above judgment of the court below is acceptable. Contrary to the allegations in the grounds of appeal, the court below did not err by failing to exhaust all necessary deliberations and by exceeding the rules of evidence.

2. Regarding ground of appeal No. 2

In full view of the contents, structure, legislative purport, etc. of Article 18(5) main sentence of the former Mountainous Districts Management Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter the same shall apply) and Article 20(6) [Attachment 4] of the former Enforcement Decree of Mountainous Districts Management Act (amended by Presidential Decree No. 24059, Aug. 22, 2012; hereinafter the same shall apply), “road where an inspection on completion of construction required for permission to convert a mountainous district has not been completed but is expected to complete the inspection on completion of construction in accordance with the relevant administrative disposition.” As such, the term “road where an actual passage has not been completed,” which is required for permission to divert a mountainous district, refers to a forest road where it is expected that the inspection on completion of construction in accordance with the relevant administrative disposition will be completed due to the absence of such administrative disposition from the beginning, or the revocation or withdrawal of the permission, and thus, it cannot be deemed that it constitutes a forest road provided beyond ordinary traffic under subparagraph 2132 and subparagraph 2 of the Mountainous Districts.

According to the reasoning of the lower judgment and the evidence duly admitted by the lower court, the following facts are revealed: (a) the instant access road was not completed; (b) the access road includes forest roads and farming roads; and (c) the Defendant included the instant access road as one of the grounds for the instant disposition, stating that “Although the access road is a road that can actually pass, the owner of the said access road did not obtain consent; and (d) the access road can only be used for the purpose of facilitating the structural improvement of the forestry infrastructure, rather than for a private forest road, not for a road.”

In light of the above legal principles and the above facts, even if the access roads, including forest roads, are actually available for actual passage, in order to obtain permission for the diversion of a forest road, among the access roads in this case, the permission for the diversion of a forest road shall continue to exist effectively and the completion inspection thereof shall be expected to be completed accordingly. Therefore, the court below should have deliberated whether the permission for the diversion of a forest road, among the access roads necessary for granting permission for the diversion of a forest road, has been granted.

Nevertheless, the lower court determined that the road manager consented to the use of roads, even though the completion inspection was not completed, on the basis that the access road of this case is possible for people, even though it was not completed, and thereafter it constitutes a road that is actually possible to pass. In so doing, the lower court erred by misapprehending the legal doctrine on the detailed criteria for permission of mountainous district conversion stipulated in subparagraph 1(e)(b) of the former Enforcement Decree of the Mountainous Districts Management Act and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)