(a) Whether permission for forest damage is exempted where conservation forest land can be diverted without permission or consent of the Minister of the Korea Forest Service;

(b) Legal nature of a natural recreation forest, which is a forest, and restrictions on permission for use and benefit thereof;

A. Article 90(1) of the Forestry Act provides that the permission or consent of the Minister of the Korea Forest Service to convert a preserved forest shall not be granted with respect to the diversion of a reserved forest, because the Minister of the Korea Forest Service has already undergone an examination by an administrative agency as to whether it is possible to damage the forest necessary for the diversion of the reserved forest when he/she obtained permission to divert the reserved forest, the purpose of the provision is to resolve inconvenience that citizens undergo double-second procedures on the ground that no permission to divert the reserved forest is required to do so. Therefore, the permission to divert the reserved forest shall not be exempted until the diversion of the reserved forest can be permitted without the permission or consent of the Minister of

B. A natural recreation forest, which is a Do forest, shall be equipped with educational facilities such as camping grounds, such as camping grounds, sports facilities including children’s playgrounds, and sanitary facilities such as cooking grounds, and nature observation centers, in a forest with beautiful scenery in order to contribute to health and relaxation, emotional cultivation, natural learning, and increase of the income of forest owners. According to Article 82(1) of the Local Finance Act, administrative property shall be permitted to be used only to the extent that it does not interfere with its use or purpose. Article 12(2)3 of the Cheongnam-do Public Property Management Ordinance provides that “Where it is apprehended to change the structure or form of property, or interfere with the use of administrative property as administrative property due to the installation or processing of facilities, etc.” As such, permission for use shall not be granted first of all in order to accept the application for permission for use of Do forest, and an administrative agency corresponding thereto shall not grant permission for use.

(a) Articles 90(1), 18(1), and 31 of the Forestry Act; Article 24(1) of the Enforcement Decree of the said Act; Article 82(1) of the Local Finance Act; Article 12(2)3 of the Ordinance on the Management of Public Property in Chungcheongnam-do;

A. Supreme Court Decision 93Nu4854 delivered on May 27, 1993 (Gong1993, 1914)

[Defendant-Appellee] Defendant 1 and 2 others

Attorney Or-hwan et al., Counsel for defendant

Seoul High Court Decision 91Gu23020 delivered on January 28, 1993

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

We examine the grounds of appeal.

(1) On July 29, 1991, as to the order to restore a forest damaged area

The court below held that the order for the restoration of a forest damage area issued on July 29, 191 by the defendant on July 29, 191, on the ground that the term "a forest with the permission or consent to diverting reserved forest under Article 18 (1)" under Article 24 (1) of the Enforcement Decree of the Forestry Act provides that "a forest with the permission or approval to divert reserved forest may be diverted without the permission or approval" shall be deemed as included in "a case where diversion of reserved forest can be diverted without the permission or approval" under Article 24 (1) of the Enforcement Decree of the same Act, and that when it is intended to use it as a site for mining and its accessory facilities under the provisions of the Mining Industry Act without the permission or approval of diversion of reserved forest (Article 24 (1) 7 of the Enforcement Decree of the Forestry Act) may damage the forest necessary for mining, etc. during the duration of the mining right without the need to obtain the permission

However, Article 90(1) of the Forestry Act provides that the permission or consent of the Minister of the Korea Forest Service to divert a reserved forest shall not be granted with regard to the permission or consent of the diversion of a reserved forest. The purpose of this provision is to resolve inconvenience that citizens need to take the two procedures on the ground that the permission or approval of the diversion of a reserved forest is not required, since the permission or approval of the diversion of a reserved forest is already examined by the administrative agency even if the diversion of a reserved forest is granted by the Minister of the Korea Forest Service, and therefore, the permission of forest damage shall not be exempted until the diversion of a reserved forest can be granted without the permission or approval of the Minister of the Korea Forest Service. This is clear in light of the fact that the permission of forest damage is necessary in cases of a reserved forest without the permission or approval

Therefore, since the plaintiff's forest damage of this case is for mining under the provisions of the Mining Industry Act, it is necessary to permit the forest damage from the defendant even though the permission of diversion of conserved forest is not necessary.

However, according to the current Article 47-2 of the Mining Industry Act, when a mining right holder obtains the approval of mining plan or the approval of the modification thereof, the permission for forest damage under Article 90 of the Forestry Act has been obtained. However, this provision applies only to the mining plan approved or approved after December 31, 1982, which was newly established, and according to the evidence No. 4, the authorization of mining plan of the plaintiff's mining right of this case was made on July 30, 1981, and thus the plaintiff should obtain the permission for forest damage without relation to the above provision.

Nevertheless, the court below held that the forest damage order of this case was not necessary, and thus, it was unlawful. The court below erred by misapprehending the legal principles as to the permission, etc. of forest damage under Article 90 (1) of the Forestry Act, which affected the conclusion of the judgment. The appeal pointing this out is with merit.

(2) On the disposition of non-permission for the use of forest

The court below acknowledged the fact that the plaintiff applied for permission to use part of the forest of this case, which is the Dominnam-gun of this case for coal mining rights owned by the plaintiff on July 22, 191, because the above forest was designated as natural recreation forests under Article 31 (1) of the Forestry Act on May 15, 191, the court below rejected the permission to use the forest of this case, which is not permitted under Article 12 (1) and (2) of the Ordinance on the Management of Public Property in Chungcheongnam-do, Chungcheongnam-do, as long as the above forest was designated as natural recreation forests by the Administrator of the Korea Forest Service on May 15, 191, and determined that the waste stone increase if the plaintiff continues to use the forest of this case without permission within natural recreation forests, and the operation of large trucks for release of produced coal, which resulted in the increase of dust and noise, and thus, the plaintiff did not use the forest of this case for the purpose of using the forest of this case without permission to use the forest of this case, which is merely 3500,0,0,00,00,00,00 square meters of waste water.

However, in order to contribute to health and relaxation, emotional cultivation, natural learning, and increase in the income of forest owners as natural recreation forests, the forest of this case is classified into administrative property for public use (Article 31 of the Forestry Act) by providing educational facilities, such as camping grounds, such as camping grounds, sports facilities including camping grounds, children’s playgrounds, sanitary facilities such as cooking grounds, and natural observation resources, with the view to contributing to the improvement of the people’s health and relaxation, natural learning, as well as the increase of the people’s income. According to Article 82(1) of the Local Finance Act, administrative property can be permitted for use only to the extent that it does not interfere with its intended use or purpose. Article 12(2)3 of the Cheongnam-do Ordinance on Public Property Management provides that the permission for use shall not be granted in cases where the use of it is likely to interfere with the use of it as administrative property due to the alteration of the structure or form and quality of the property or the installation or processing of facilities. Accordingly, in order to accept the application for permission for use, the administrative agency can not grant permission for use.

It is clear that the Defendant’s act as the ground for non-permission of this case constitutes a case where the permission of the use of the forest of this case against the Plaintiff is prohibited under the above laws and regulations.

Therefore, in order to ensure that the disposition of denying permission for the use of the Do Forest in this case is unlawful, it should be first determined whether the permission for the use of the Do Forest in this case against the plaintiff constitutes a case where permission for the use of the Do Forest in this case cannot be granted under the laws and regulations, such as Article 82 (1) of the Local Finance Act and Article 12 (2) of the Public Property Management Ordinance, etc. However, the court below erred by determining whether the permission for the use of the Do Forest in this case is abuse of discretion to be considered only

According to the records, the plaintiff's mine is likely to avoid pollution such as air and valleys due to dust generated in the course of coal mining, storage, transportation, waste rocks, wastewater, etc. Even if the distance from various resort facilities is not reduced to 500 meters, since the plaintiff's mine is located in the upper part of the same dub, where a resort facility is or is scheduled to be installed, it appears that the plaintiff's mine cannot avoid pollution such as air and valleys caused by dust generated in the course of transportation, waste rocks, wastewater, etc. In particular, since a road leading to the dubus cannot be used only once for vehicles or resort users, the dud road can not be used for the mine, and the road can be used through the location of the resting facility. The decision of the court below that "it is reasonable to view that the plaintiff's use of the natural recreation forest is likely to interfere with the purpose of the plaintiff's use of the natural recreation forest," as it is reasonable to consider that the 15 tons of the large truck only for transporting coal as planned by the plaintiff.

Therefore, the judgment of the court below on the rejection of permission for the use of the forest of this case is erroneous in the misunderstanding of legal principles or misunderstanding of facts which affected the conclusion of the judgment, and the appeal pointing this out is justified.

(3) The lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Choi Jae-ho (Presiding Justice)