[1] The case holding that it cannot be concluded that a person lost the function of cultivation of a water source solely on the ground that the land designated as the "Class 1 water source development forest" under Article 44 (1) 4 (a) of the Enforcement Rule of the Forestry Act is being used as farmland

[2] The method of determining whether the land designated as the "Class 1 water source development forest" under Article 44 (1) 4 (a) of the Enforcement Rule of the Forestry Act has lost its designation purpose

[3] The case reversing the judgment of the court below that an administrative agency's disposition of rejection of an application for cancellation of a reserved forest on the land designated as the "Class 1 water source development reserved forest" under Article 44 (1) 4 (a) of the Enforcement Rule of the Forestry Act was a deviation or abuse of discretion

[1] The case holding that in principle, even if the designation of a reserved forest under Article 56 of the Forestry Act is deemed to be subject to a forest under Article 2 (1) 1 of the same Act, it cannot be concluded that the designation of a reserved forest is lost solely on the ground that the current state is possible for the land which is not a forest, and that the designation of a reserved forest under Article 1 of the Forestry Act was "forest within 2,000 meters from the full water level of a reservoir" before the amendment of the Enforcement Rule of the Forestry Act on June 19, 1989, and the designation of a reserved forest under Article 56 of the same Act was "forest within 1,00 meters from the full water level of a reservoir" as "forest within 1,00 meters" under Article 44 (1) 4 (a) of the Enforcement Rule of the same Act

[2] Whether the "forest, etc. around a reservoir which has an absolute effect on a small quantity" as provided by Article 44 (1) 4 (a) of the Enforcement Rule of the Forestry Act concerning the designation of "Class 1 water source development reserved" should be determined as to whether the whole forest, etc. designated as a reserved forest among the forests, etc. within a reservoir's full water level within 1,000 meters or within 1,000 meters from the full water level of the reservoir in question, all of the forests, etc. designated as a reserved forest, etc. within a certain range of 1,00 meters, have an absolute impact on the water quantity of the reservoir. On the contrary, in light of the result of prediction of a change in the water capacity of the reservoir, it cannot be seen that only some of the forests, etc. have an absolute impact on the water quantity of the reservoir, etc., and it cannot be seen that the administrative agency has an absolute impact on the water quantity of the reservoir in question, and further, it cannot be seen as having an absolute impact on the water quantity of the reservoir in question.

[3] The case reversing the judgment of the court below that an administrative agency's disposition of rejection of an application for cancellation of a reserved forest on the land designated as the "Class 1 water source development reserved forest" under Article 44 (1) 4 (a) of the Enforcement Rule of the Forestry Act was a deviation or abuse of discretion

[1] Article 2(1)1 and Article 57 subparag. 1 of the Forestry Act (repealed by Article 2 of Addenda of the Creation and Management of Forest Resources Act, Act No. 7678 of Aug. 4, 2005), Article 44(1)4(a) of the Enforcement Rule of the Forestry Act / [2] Article 57 subparag. 1 of the Forestry Act (repealed by Article 2 of Addenda of the Creation and Management of Forest Resources Act, Act No. 7678 of Aug. 4, 2005), Article 44(1)4(a) of the Enforcement Rule of the Forestry Act / [3] Article 57 subparag. 1 of the Forestry Act (repealed by Article 2 of Addenda of the Creation and Management of Forest Resources Act, Act No. 7678 of Aug. 4, 2005), Article 44(1)4(a) of the Enforcement Rule of the Forestry Act, Article 27 of the Administrative Litigation Act

Plaintiff (Attorney Seo-ho et al., Counsel for the plaintiff-appellant)

Market for the United States

Seoul High Court Decision 2004Nu18872 delivered on December 29, 2005

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

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below acknowledged the following facts as to the plaintiff's assertion that the application site of this case (25,219 square meters of forest land and 29,958 square meters of forest land and 25,219 square meters of forest land and 4,739 square meters of forest land and 29,000 square meters of forest land) was used as long as it was used as long as it was at the time of the disposition of this case, it does not constitute a forest subject to regulation of the Forestry Act, and thus, it should have lost the purpose of designating the forest as the original river cultivation (water cultivation) reserved forest. Thus, the defendant revoked the designation of the reserved forest of the application site of this case pursuant to Article 57 subparagraph 1 of the Forestry Act while it was in violation of the Forestry Act or deviates or abused from discretion, and thus, it was unlawful.

The first-class water source development reserved forest is to be designated for forests around reservoirs that are deemed to have absolute influence on the low quantity of major industrial water, such as agricultural water and industrial water in the downstream [Article 44(1)4(a) of the Enforcement Rule of the Forestry Act]. When it is deemed that the purpose of the designation of a reserved forest is lost, the designation of a reserved forest may be cancelled (Article 57 of the Forestry Act). Thus, whether the purpose of the designation of a reserved forest in the instant application land has been lost, namely, whether the instant application land has absolute effect on the low quantity of the reservoir at the same time or not.

Although the application price of this case is a piece of land equal to about 29,958 square meters located within a 700-meter radius from the Dong bank reservoir, the provisions pertaining to the reserved forest under the Forestry Act also can be applied to mountain, field, and other land which is not a forest (Article 2(2) of the Forestry Act and Article 3 subparag. 1 of the Enforcement Decree of the Forestry Act). Thus, the designation of the reserved forest is possible for land which is not a forest, such as the application price of this case. However, in principle, the designation of the reserved forest is subject to the forest under Article 2(1) subparag. 1 of the Forestry Act, and its status has already been used as farmland not a forest for a long time from the 1980s to the time of the disposition of this case. In light of the result of prediction of change in the quantity of excellent reserved land such as the recognition, even if the application price of this case was cancelled and planned by the plaintiff, it does not have absolute influence on the quantity of the reservoir nearby the application of this case.

2. However, it is difficult to accept such recognition and determination by the lower court as they are.

가. 먼저, 원심 인정과 같이 이 사건 동방저수지는 현재도 화성시 팔탄면, 장안면 일대 약 228㏊의 농경지를 관리면적으로 하여 연간 765,000㎥의 용수를 공급하는 역할을 하고 있으므로 예컨대 ‘저수지가 천재지변 등으로 인한 피해를 입고 그 원상복구가 되지 아니하는 등으로 저수지로서의 기능을 상실하였다.’는 등의 사정은 없다{2005. 8. 4. 법률 제7678호로 제정되어 공포 후 1년 후에 시행되는 산림자원의 조성 및 관리에 관한 법률 제46조 (보안림의 지정해제) 제1항 제2호 는 ‘천재지변 등으로 인한 피해로 지정목적이 상실되었다고 인정하는 때’를 그 사유로 규정하고 있다}.

B. However, the lower court, based on its determination, determined the following: (a) “The designation of a reserved forest is, in principle, subject to the forest stipulated in Article 2(1)1 of the Forestry Act; and (b) the current status of a reserved forest has been used for farmland, not for a forest, for a long time from before the 1980s to the time of the instant disposition.” However, in principle, the designation of a reserved forest, as stated in its reasoning, is deemed to be subject to the forest stipulated in Article 2(1)1 of the Forestry Act, even if it is deemed that the current status of a reserved forest, such as the place of application in this case, can only be designated as a reserved forest, and it cannot be readily concluded that the designation of a reserved forest has lost its function as a source of a reserved forest solely on the ground that the current status of a reserved forest, such as the place of application in this case, is farmland that is not a forest, not for a forest, but for a forest, but for a forest with a reduced range of not more than 10 meters.”

In addition, in light of the result of a change in the volume of excellent oil such as the recognition thereof, even if the application in this case is cancelled the designation of the relevant reservoir and is developed into the warehouse site planned by the Plaintiff, it does not seem that such change may absolutely affect the low quantity of the reservoir ( there is no evidence by the Defendant as to the fact that the land price of this case absolutely affects the low quantity of the reservoir). However, Article 44 (Designation of Reserved Forest) of the Enforcement Rule of the Forestry Act provides that “(1). 4......... the designation of the reservoir is deemed absolutely affecting the low quantity of major industrial water, such as agricultural water, power generation, and industrial water, etc. at the 1,000 forest reservoir and its surrounding area may not be determined within one thousand meters from the water level, and it cannot be seen that the designation of the reservoir in this case is within one thousand meters from the total quantity of the reservoir in question and its surrounding area, such as the water level of the reservoir in question, and that there is no absolute change in the quantity of the reservoir in the forest within one thousand.”

The court below cited the case where the designation of a reserved forest has already been cancelled for other lands adjacent to the application site of this case as the ground for determining that the designation of a reserved forest has been lost. However, such circumstance may not be readily concluded that the application site of this case still remains as the ground for maintaining the designation of a reserved forest, etc. as a source development forest, and thus, it cannot be concluded that the purpose of the designation of the reserved forest has been lost until the application site of this case (Additionally, the area of the land on the two lots seems to be either 1/10 of the application site of this case or smaller than that of each application site of this case). In addition, the same holds true for the circumstance that the neighboring one parcel of land is excluded in the area where the designation of a reserved forest is publicly notified as a source of land adjacent to the

Nevertheless, the court below concluded that the application of this case was invalidated on the ground of the above reasons, and ruled that the defendant's disposition of this case which rejected the plaintiff's application for cancellation of the designation of a reserved forest was unlawful. In so doing, the court below erred by misapprehending the legal principles affecting the conclusion of the judgment and misconception of facts due to violation of the rules of evidence, and the ground of appeal pointing this out has merit

3. 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 Park Jae-sik (Presiding Justice)