[1] Whether non-permission disposition is unlawful in accordance with the amended statutes and permission standards where the relevant statutes were amended and enforced before the approval or permission was granted

[2] The statutes applicable to the criteria for permission for quarrying in cases where the pertinent statutes were amended and the transitional regulations do not provide for the scope of its application

[1] In principle, an administrative act shall be conducted based on the laws and standards in force at the time of the disposition, and when an application for permission was already made before the amendment of the relevant Acts and subordinate statutes enters into force after the approval or application for permission, it shall not be determined by the Acts and subordinate statutes at the time of the application for permission, unless there is a transitional provision to the effect that the previous provisions apply. Even if the competent administrative agency accepts the application for permission and delays the disposition without justifiable grounds, the non-permission disposition shall not be deemed unlawful in accordance with the amended Acts and subordinate statutes and the permission standards, unless

[2] In a case where the provisions of the relevant Acts and subordinate statutes on quarrying are amended, unless otherwise specified in the transitional provisions of the newly amended Act, determination of permission for quarrying in accordance with the amended Act and its standards should be made, unless otherwise specified in the revised Act and subordinate statutes, and in relation to the application of such amended Acts and subordinate statutes, there may be room for limiting its application to protect the public’s trust in the case where the public’s trust in the continuation of the statute prior to the amendment is deemed more worthy of protection than the public interest demand on the application of the amended

[1] Article 1 of the Administrative Litigation Act / [2] Article 1 of the Administrative Litigation Act / [2] Article 4 (2) of the Administrative Procedures Act, Article 90-2 of the former Forestry Act (amended by Act No. 6841 of Dec. 30, 2002) (see Articles 25 and 28 of the current Management of Mountainous Districts Act), Article 95-5 of the former Enforcement Rule of the Forestry Act (amended by Act No. 1428 of Nov. 14, 2002) (see Article 36 of the current Enforcement Decree of Mountainous Districts Management Act)

[1] Supreme Court Decision 94Nu1087 delivered on Nov. 21, 1995 (Gong1996Sang, 82), Supreme Court Decision 95Nu10877 delivered on Aug. 20, 1996 (Gong1996Ha, 2874), Supreme Court Decision 96Nu1972 delivered on Mar. 27, 1998 (Gong1998Sang, 1221), Supreme Court Decision 97Nu9574 delivered on Dec. 8, 1998 / [2] Supreme Court Decision 98Du13812 delivered on Nov. 10, 1998 (Gong198Ha, 282), Supreme Court Decision 97Nu138812 delivered on Mar. 10, 200 (Gong1997Du138819, Apr. 29, 205)

New Development Co., Ltd. (Law Firm Pacific, Attorneys Song Jin-hun et al., Counsel for the plaintiff-appellant)

Maam Gun (Attorney Jeong Byung-su, Counsel for defendant-appellant)

Gwangju High Court Decision 2002Nu720 delivered on March 20, 2003

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

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

In principle, an administrative act shall be conducted according to the Acts and subordinate statutes in force at the time of the disposition, and when the relevant Acts and subordinate statutes were amended and enforced before the disposition is made after the approval and application, unless there is a transitional provision that the previous provisions apply when an application for permission was already made before the enforcement of the Addenda to the new Acts and subordinate statutes, it shall not be determined according to the Acts and subordinate statutes at the time of the application for permission. Even if the competent administrative agency accepts the application for permission and delays the disposition without justifiable grounds, the non-permission disposition shall not be deemed unlawful (see Supreme Court Decision 96Nu1972 delivered on March 27, 198).

In light of the facts established by the court below and records, the plaintiff filed an initial application for permission for development activities under Article 46 of the Urban Planning Act (hereinafter "the first application") with the defendant for the purpose of collecting earth and rocks from 19,75 square meters of forest land (hereinafter "the site of this case") 263,31 square meters in Yong-gun, Nam-gun, 200, and the first application for permission for development activities under Article 47 of the same Act (hereinafter "the first application of this case"), which was filed by the 40th Do governor on December 30, 200, and the first application for permission for development activities under Article 90-2 (1) and (6) of the Forestry Act (amended by Presidential Decree No. 6841 of Dec. 30, 202), which was located within 50 meters prior to the first application for permission for development activities of 40 square meters in the area of this case. The defendant did not have a legitimate ground for cancellation of the previous application for permission for development activities.

The fact-finding and judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the law applicable to the case where the criteria for permission were modified after the application for permission was made. The ground for appeal

2. Regarding ground of appeal No. 2

In a case where the provisions of the relevant Acts and subordinate statutes concerning permission for quarrying are amended, unless otherwise provided in the transitional provisions of the newly amended Acts and subordinate statutes, determination of permission for quarrying in accordance with the amended Acts and subordinate statutes enforced at the time of the disposition should be made, and in relation to the application of such amended Acts and subordinate statutes, there may be room for restrictions to protect the public’s trust in the continuance of the preceding Acts and subordinate statutes in a case where the public’s trust in the existence of the statutes prior to the amendment is more worthy of protection than the public’s demand for the application of the amended Acts and subordinate statutes (see Supreme Court Decisions 2001Du274, Oct. 12, 2001; 2001Du5125, Jun. 25, 2002, etc.).

According to the reasoning of the lower judgment and the reasoning of the first instance judgment cited by the lower court, the lower court determined that the Defendant’s first application of the Enforcement Rule of the Forestry Act, which applied the said Enforcement Rule, was lawful, on the ground that the Plaintiff’s trust in the continuation of the permit prior to the establishment of the said Enforcement Rule does not have to be protected more than the public interest demand on the application of the newly established permit standards, and thus, the Defendant’s first application of the said Enforcement Rule was lawful.

In light of the relevant laws and the legal principles as seen earlier, the above judgment of the court below is just, and there is no error of law by misapprehending the legal principles on the principle of trust protection and proportionality. This part of the grounds of appeal is without merit.

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Zwon-won (Presiding Justice)