[1] The legal nature of the disposition to permit the establishment of mining rights and the contents to be included in the mining plan to be prepared to obtain the mining plan approval

[2] The case reversing the judgment of the court below which held that a disposition to permit the establishment of a mining right was unlawful on the grounds that the elements to be considered in the "authorization of a mining right establishment" were considered in determining the illegality of

[1] The permission for establishment of mining rights is an administrative act that grants mining rights, the right of which is the right to mine and acquire non-mining minerals by the State, and the permission is revoked even after the permission is granted for the public interest, and the permission is revoked without commencement of mining within a certain period. On the other hand, the above mining plan must be prepared and approved in advance. The above mining plan must include the detailed contents of mining method and plan, light and refining method, production and sales plan, mining safety facility plan, etc., along with the survey room attachment. Among them, the mining safety facility plan should be designed to prevent damage to the mine and its surrounding environment due to the prevention of danger to people, the protection of underground resources, excavation of underground resources, mineral extraction, mineral extraction and refining, the loss of waste stone and mineral sludge, the discharge and leakage of pit water and waste water, the emission of mine smoke, dust emission, dust emission, dust dust, noise and vibration, noise and vibration.

[2] The case reversing the decision of the court below that the establishment permission disposition of a mining right is unlawful on the ground that there are errors in the incomplete deliberation of the decision of the court below, which held that the establishment permission disposition of a mining right is unlawful on the ground of factors to be considered in the establishment permission of a mining right in determining the illegality of the establishment permission of a mining right in a different manner from each other in the specific contents

[1] Articles 2, 4 (see current Article 3 subparag. 2), 5 (1) (see current Article 3 subparag. 3), 29 (1) (see current Article 34(1)), 39 (1) (see current Article 34(1)), 40 (see current Article 35), 45 (see current Article 40), 47 (see current Article 42), 40), 41 (see current Article 47) of the former Enforcement Decree of the Mining Industry Act (Amended by Presidential Decree No. 17679, Jul. 20, 202); Article 20 (2) of the former Enforcement Decree of the Mining Industry Act (Amended by Act No. 17679, Aug. 19, 200); Article 41 (see current Article 40); Article 20 (3) of the former Enforcement Decree of the Mining Industry Act (Amended by Act No. 17614, Aug. 20, 2002); Article 19 (2) of the former Enforcement Rule)

Plaintiff 1 and 593 others (Attorney Kim Jong-il, Counsel for the plaintiff-appellant)

Do Governor of Chungcheongbuk-do

Do Governor of Chungcheongbuk-do and one other

Intervenor joining the Intervenor

Supreme Court Decision 2006Du7577 Decided September 11, 2008

Seoul High Court Decision 2008Nu26772 Decided November 28, 2008

The part of the judgment of the court below against the defendant mining registration office is reversed, and that part of the case is remanded to the Seoul High Court. The remaining appeals are dismissed.

We examine the grounds of appeal.

1. As to the change of mining plan and the disposition

According to the reasoning of the judgment below, as to the plaintiffs' claim seeking revocation of the mining plan or revised mining plan of this case which is the mining right holder No. 1 through No. 3 of this case by integrating each of the above mining rights with the mining rights of this case, the court below determined that the above mining plan of this case was unlawful in the light of the following facts: (a) the outline of mines within the mining area subject to the above mining rights; (b) the scale of the mineral surface and its dignity; (c) the detailed contents of the mining plan for which the revised mining plan was obtained (e.g., mining method and sale plan, estimated profits; (d) the level of digging up to the present and some housing owned by the plaintiffs; (e.g., ruptures for food accommodation; and (e) the estimated outflow of groundwater in the above early mining area; (e) the level of groundwater flowing from the mining area before the mining area; and (e) the scale of groundwater pollution generated by the new mining plan of 1 to the adjacent mining area of this case; and (e) the new environmental pollution plan should be reported to the new soil pollution level.

According to the facts duly established by the court below, since the possibility of infringing public interest, such as environmental conservation, is more significant than the social and economic interests obtained by mining activities in accordance with the revised mining plan of this case as stated by the court below, the disposition of the court below that approved the alteration of the mining plan of this case, which is a beneficial administrative act, did not properly compare a bridge with the relevant public interest that is likely to be infringed by it, and thus, it is justified in the judgment below to the same purport.

The Intervenor’s ground of appeal as to this part of the judgment below is merely an error in the judgment of the court below on the premise that the lower court’s fact-finding, which belongs to the exclusive authority of the fact-finding court, or on the premise that the facts acknowledged by the

2. On the permission for the establishment of mining rights

A. According to the facts and records of the court below's finding that the plaintiffs, who are not the other party to the disposition of this case, were aware of the above permission disposition within 90 days from February 22, 2001, which was the date of filing the objection, as to the permission disposition of the establishment of mining rights of this case Nos. 5 and 6 of this case as of October 12, 200, since there was no evidence to support that the above permission disposition was known within 90 days from the date of filing the objection, it cannot be said that the plaintiffs did not comply with the statutory objection period in seeking the cancellation

In the same purport, the judgment of the court below that rejected the principal safety defense by the head of the defendant mining registration office is justifiable.

This part of the judgment below is without merit or incomplete hearing as otherwise alleged in the ground of appeal.

B. On October 12, 200, the lower court determined that, with respect to the Plaintiffs’ claim seeking revocation of mining rights Nos. 5 and 6 of this case where the Intervenor completed the registration as of October 16 of the same year with the establishment permission from the head of the Defendant’s mining office as of October 12, 2000, which was not yet applied and authorized by the specific mining plan, the above permission disposition for establishment of mining rights on the same ground as the determination on the cancellation claim of the mining plan modification approval for the mining rights Nos. 1 and 3 of this case constitutes deviation and abuse of discretion

In full view of the provisions of Articles 10, 12(2), 29(1), 29-2, 39, 48, 83(2), 84 through 87, 88(2), and 91(1), and the former Mining Industry Act (amended by Act No. 8184, Jan. 3, 2007; hereinafter the same) which provide the basis for permission for the establishment of mining rights or the related Acts and subordinate statutes, as well as Article 10, 12(2), 29(2), 29-2, 39, 48, 83(2), 84 through 87, 88(2), and 91(1) of the former Mining Industry Act (amended by Act No. 6612, Jan. 19, 200; hereinafter the same shall apply), the purport of the above-mentioned Acts and subordinate statutes is to obtain permission for the establishment of mining rights or subsequent procedures for mining development of the land or the environment from interested parties.

However, examining the contents of the above-mentioned laws and regulations on permission for the establishment of mining rights and approval for mining plans, permission for the establishment of mining rights is an administrative act that grants mining rights, the right to mine for non-mining minerals by the State, which is the right to mine and acquire mining rights, for reasons of public interest even after permission is granted, and permission is revoked without commencement of mining within a certain period. Meanwhile, in mining, the above mining plan must be prepared and approved in advance. The above mining plan must include the detailed contents of mining method and plan, light and refining method, production and sales plan, mining safety plan, etc. along with the survey room drawings, and the above mining safety facilities plan should include the detailed contents of mining method and plan, production and sales plan, etc., such as prevention of danger to people, protection of underground resources, excavation of minerals, extraction of minerals, mining of mineral products, water and waste water discharge, discharge and smoke of mine water, emission of dust, emission of dust, emission of dust, noise and vibration, etc., Article 14(4) of the former Enforcement Decree of the Mining Industry Act, Article 20(4) of the same Act.

According to the above-mentioned provisions, mining rights grant comprehensive rights to mine and acquire non-mining minerals, and mining plans grant mining right holders to engage in specific development activities based on the above mining rights, and various circumstances concerning public interests and private interests that should be considered and compared and balanced at the time of permission for mining rights and authorization for mining plans are not identical to each other in the specific contents. Nevertheless, the court below determined that the above mining plan is unlawful on the ground of factors to be considered in determining illegality in the above mining plan approval. Thus, the court below erred in the misapprehension of the legal principles on the nature of the permission for the establishment of mining rights and the examination of deviation and abuse of discretionary power, and failed to exhaust all necessary deliberations.

The ground of appeal by the head of the defendant mining registration office pointing this out is with merit.

3. Conclusion

Therefore, the part of the judgment of the court below against the defendant mining registration office is reversed, and that part of the case is remanded to the court below for a new trial and determination, and the remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices

Justices Yang Chang-soo (Presiding Justice)