[1] Validity of the conditions of approving mining plans with fixing the forest damage period

[2] Whether permission for forest damage or permission for extending the period of forest damage can be refused without express legal basis even if it does not constitute an area subject to prohibition or restriction of forest damage (affirmative with qualification)

[1] When the approval of mining plan is obtained under Article 47-2 of the Mining Industry Act, it shall be deemed that the permission of forest damage under Article 90 of the Forestry Act is obtained under Article 47-2 of the Mining Industry Act, but it shall not be deemed that the conditions of forest damage cannot be attached when the approval of mining plan is granted. Thus, when the approval of mining plan is granted to the applicant by the head of local government, the applicant shall obtain an extension of the period of forest damage or a new permission of forest damage.

[2] Since forest damage is an act that directly affects the preservation of national land and nature and the preservation of the environment, such as water quality, etc., and even if it does not constitute a prohibited or restricted area as well as an area subject to the prohibition or restriction as stipulated by the law, the permitting authority may refuse to grant permission when it is deemed necessary for important public interests, such as the maintenance of national land and nature, preservation of environment, etc. in light of the current state, location, surrounding circumstances, etc. of the land subject to the application for permission for forest damage, and in such a case, it may

[1] Article 47-2 of the Mining Industry Act, Article 90 of the Forestry Act, Article 1 of the Administrative Litigation Act / [General]

[1] [2] Supreme Court Decision 92Nu7726 delivered on April 23, 1993 (Gong1993Ha, 1574) / [1] Supreme Court Decision 96Nu12269 delivered on June 13, 1997 (Gong1997Ha, 2047) / [2] Supreme Court Decision 91Nu767 delivered on April 10, 1992 (Gong192, 1607), Supreme Court Decision 92Nu1025 delivered on November 10, 1992 (Gong193Sang, 121), Supreme Court Decision 93Nu4854 delivered on May 27, 1993 (Gong193Ha, 1914) / [2] Supreme Court Decision 91Nu76539 delivered on September 15, 195 (Gong19953Ha decided September 35, 1995)

Sam Young Mining Co., Ltd. (Law Firm Pacific, Attorneys Lee Jae-sik et al., Counsel for the plaintiff-appellant)

Posi Gun (Attorney Kim Dong-ju, Counsel for defendant-appellant)

Gwangju High Court Decision 95Gu3038 delivered on September 5, 1996

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

We examine the grounds of appeal.

1. On the first ground for appeal

When the approval of mining plan is obtained under Article 47-2 of the Mining Industry Act, the permission to damage the forest under Article 90 of the Forestry Act is deemed to have been obtained, but it cannot be said that when the approval of mining plan is granted, conditions as to forest damage cannot be attached to the approval of mining plan. Therefore, when the Governor of Jeollabuk-do approves the mining plan to the plaintiff, the plaintiff should obtain an extension of the period of forest damage or a new permission to damage the forest when the period expires.

In addition, since the forest damage directly affects the preservation of the environment, such as the maintenance of national land and nature and the preservation of water quality, even if it does not fall under the prohibited or restricted areas as provided by the law, the permitting authority may refuse to grant permission when it is deemed necessary for the important public interest, such as the maintenance of national land and nature, and the preservation of the environment, considering the status, location, surrounding circumstances, etc. of the land subject to the application for permission for forest damage, and in such a case, it is possible to issue a rejection disposition even if there is no explicit basis under the law (see Supreme Court Decision 95Nu6113, Sept. 15, 1995). The same applies to the extension of the

In the same purport, the court below rejected the plaintiff's assertion that the disposition of this case was unlawful due to the lack of legal grounds, and there is no error in the misapprehension of legal principles as to the interpretation of Article 47-2 of the Mining Industry Act or the omission of administrative act, such as the theory of lawsuit. There is no ground for argument.

2. On the second ground for appeal

The court below held that the mining area of this case is right and wrong in the light area of this case where part of the upper part of the upper part has already been modified due to the characteristics of the mineral deposit and the other roof is anticipated to damage the original form of the adjacent forest, and where mining operations are continued under such circumstances, mining accidents are likely to occur, and there is a need for public interest to prevent and rapidly restore the mining area of this case and preserve it, and further, even if the plaintiff's disadvantage is caused by the plaintiff's assertion, the plaintiff has already received a lot of income through the mining operations for about nine years, and it cannot be deemed the most favorable for the plaintiff to continue mining and restore it, and there is no violation of law as argued by the plaintiff, such as the theory that the disposition of this case was abused or abused.

3. Accordingly, the appeal shall be dismissed and all costs of appeal shall be assessed against the losing plaintiff. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-sik (Presiding Justice)