continental Mining Co., Ltd. (Law Firm Woo, Attorneys Lee Young-min et al., Counsel for the defendant-appellant)

Respondent 1 and 365 others (Law Firm Loex et al., Counsel for the defendant-appellant)

1. The provisional disposition order issued on June 21, 2006 between the claimant and the respondent is revoked by this Court as to the case of applying for a provisional disposition suspending construction works between the claimant and the respondent.

2. Litigation costs shall be borne by the respondent.

1. It is marked with the main text;

2. Preliminaryly, the part of the provisional injunction order rendered on June 21, 2006 between the Claimant and the Respondent that this Court shall not suspend and continue mining operations for prospecting on the basis of mining rights listed in paragraph 1 of the attached Table among the provisional injunction order rendered on June 21, 2006 is revoked.

1. Basic facts

In full view of the records and the purport of the whole examination, the following facts can be acknowledged.

(a) Application for provisional disposition and decision of dismissal by the court of first instance;

① On April 19, 2001, the respondent filed a provisional disposition (2001Kahap96) seeking the suspension of the applicant’s mine development work with the Cheongju District Court Assistance.

② On July 26, 2002, the court of first instance dismissed the application for provisional disposition on the ground that the vindication of the right to be preserved is insufficient.

(b) Decision on provisional disposition for appeal;

On June 21, 2006, the appellate court recognized that the respondent has the right to file a claim for the suspension and prohibition of mining development works based on ownership and environmental rights, and recognized the necessity of preservation in light of the importance of rights and interests and the intensity of infringement and extension of existence, the appellate court, which is the appellate court, also rendered a provisional disposition that "it shall not suspend and continue mining works for prospecting and extraction based on mining rights stated in the attached Table that the applicant is in force on the land in the attached Table stating the details of the project site" (the Daejeon High Court Decision 2002Ra46, hereinafter referred to as the "provisional disposition order of this case").

C. Execution of provisional disposition

The provisional disposition decision of this case was served on July 3, 2006 on the applicant who is the debtor.

2. Applicant's assertion

(a) Main claim: The revocation of provisional disposition on the grounds that the lawsuit is not brought on the merits; and

Since the respondent filed a lawsuit on the merits for three years after the provisional disposition decision of this case was executed on July 3, 2006, the respondent shall be revoked in accordance with the provisions of Articles 301 and 288(1)3 of the Civil Execution Act.

B. Preliminary assertion

In light of the following circumstances, the part of the suspension of digging works for prospecting based on the mining right listed in paragraph (1) of the attached Table (hereinafter referred to as the "mining right of this case") in the decision of provisional disposition of this case shall be revoked by the following grounds:

① Even if additional mining works for prospecting based on the instant mining right are permitted, it is merely 3.65 times the previous works already implemented, and it is merely a preliminary phase to grasp whether there is economic feasibility as much as the mining operations are conducted, not the main mining phase, and there is no environmental pollution, etc.

(2) With respect to the problems such as the erosion possibility, noise and vibration, outflow of groundwater, groundwater outflow and groundwater pollution, water and soil pollution, etc. which may occur from digging works, an applicant has already prepared a preparation plan at the request of the university research institute (a request for services at Hou University). (b) An applicant has already prepared a preparation plan at the request of the university research institute (a request for services at Hou University), accompanied by modern forms

③ The applicant’s permission to mine in the vicinity of the applicant’s “Tule mine” is unreasonable in terms of the applicant’s permission to exploit gold mines, such as active mines and oil mines.

1) Revocation of provisional disposition due to changes in circumstances

Even if the construction work for prospecting based on the mining right of this case is permitted, there is no room for the problems such as environmental pollution, which is recognized in the decision of provisional disposition of this case. As to this part, there is a change of circumstances that have ceased to exist the grounds for provisional disposition, it shall be revoked pursuant to Articles 301 and 288(1)1 of the Civil Execution Act.

2) Revocation of provisional disposition due to special circumstances

In addition, the provisional disposition on the part of digging for prospecting based on the mining right of the instant case is recognized as "a circumstance in which the right to be preserved can achieve the objective of the relevant country by monetary compensation," or "a circumstance in which the applicant suffers much more damage than ordinary damages by the above part of the provisional disposition." Thus, the provisional disposition on the part of digging for prospecting based on the mining right of the instant case shall be revoked in accordance with the provisions of Article 307 (1) of the Civil Execution Act

3. Whether the ground for revocation exists that the person did not file a lawsuit on the merits after the execution of provisional disposition;

(a) relevant legal provisions;

According to Articles 301 and 288(1)3 of the Civil Execution Act (amended by Act No. 7358, Jan. 27, 2005; hereinafter “Revised Civil Execution Act”), if the “when a lawsuit is not brought in the main lawsuit for three years after the provisional disposition is executed”, it becomes a ground for revocation of provisional disposition.

(b) Recognition of grounds for revocation;

As seen earlier, the provisional disposition decision of this case was executed on July 3, 2006, and as long as the respondent did not file a lawsuit on the merits for three years from that time, the provisional disposition decision of this case shall be revoked in accordance with the above legal provisions.

C. Determination of the respondent's assertion

1) As to the assertion that the lawsuit on the merits was brought

A) Respondent's assertion

① Before three years have elapsed since the execution of the instant provisional disposition, the respondent filed a lawsuit seeking the revocation of the permission for the establishment of mining rights to the instant mining right, etc., and received a favorable judgment in full regarding the claim for the revocation of the permission for the alteration of mining plan, the respondent received the claim for the exclusion of disturbance based on ownership or environmental right, which is the preserved

② After remanding the above administrative case, the appellate court (Seoul High Court 2008Nu26772) recognized that the respondent has standing to sue.

③ Therefore, in light of the above contents of the judgment, the respondent filed a lawsuit on the merits within the period prescribed in Articles 301 and 288(1)3 of the amended Civil Execution Act.

B) the facts of recognition

The following facts are significant in this Court:

① On July 29, 2003, the respondent filed a lawsuit against the Cheongbuk-do Governor and the head of the mining office seeking the revocation of mining plan, revised approval, disposition, etc. on the mining right, etc. of the instant case (Seoul Administrative Court 2003Guhap23233), and was sentenced to the Plaintiff’s failure on February 15, 2005. The respondent was sentenced to the appeal on April 12, 2006 from the appellate court (Seoul High Court 2005Nu5323) (Supreme Court 2006Du7577) to the appellate court on September 11, 2008 (Supreme Court 2006Du7577).

② After the remand, the respondent received a judgment from the appellate court (Seoul High Court 2008Nu26772) on November 28, 2008, such as revocation of the mining plan modification approval for the mining rights, etc. of the instant mining rights, etc. of the Cheongbuk-do Governor, and the said judgment was finalized on February 17, 2010.

C) Determination

① “Lawsuit on the merits” provided for in Articles 301 and 288(1)3 of the amended Civil Execution Act refers to a civil trial procedure that determines the existence of a right or legal relationship to be directly preserved by a preservative measure. In addition, although the right to be preserved in a preservative measure and the right on the merits do not need to be strictly consistent, the validity of a preservative measure, which is recognized as the basis of a claim, extends to the right to a lawsuit on the merits (see Supreme Court Order 2008Ma1984, Mar. 13, 2009).

(2) However, as above, a lawsuit seeking revocation of mining plan authorization and disposition etc. regarding the mining right, etc. of this case filed by the respondent against the Cheongbuk-do Governor, etc. is only a type of administrative litigation, and cannot be deemed a civil trial procedure, and it is not an applicant, but an administrative agency (the applicant was the defendant supplementary intervenor). The subject matter of lawsuit is not the same as that of the claim between the right to be preserved in the decision of provisional disposition

③ Therefore, the respondent’s above assertion is without merit.

E) As to the subsequent filing of a civil suit

① Some of the respondents filed a lawsuit against the petitioner on May 4, 2010 with the Cheongju District Court Cheongju District Court Cheongju Branch (2010dan3295) for the removal of disturbance, such as ownership, etc. (2010dan3295), and on June 15, 2010 (2010Gadan4403) for the prohibition of construction, etc. (2010da4403) are significant in this court.

② However, even if the above civil procedure constitutes “the lawsuit on the merits” as stipulated in Articles 301 and 288(1)3 of the Civil Execution Act, it is clear that all the above lawsuit was filed after the lapse of three years from the time when the provisional disposition order of this case was executed on July 3, 2006.

(3) If the three-year period has elapsed after the execution of provisional disposition, the requirements for revocation under the above Acts shall be completed, and even if the lawsuit on the merits is instituted thereafter, the revocation of provisional disposition shall not take effect (see Supreme Court Decision 99Da37887 delivered on October 26, 199). Thus, the effect of revocation arising under the above provisions of the above Acts shall not be excluded on the ground that such civil lawsuit was instituted.

2) As to the assertion that the period of lawsuit is five or ten years

A) Respondent's assertion

① Since the respondent filed an application for provisional disposition of this case on April 19, 2001, the provisions of the Act prior to the amendment are applied in accordance with the transitional provisions of the Addenda to the amended Civil Execution Act, and the grounds for revocation are recognized as “when the respondent did not file a lawsuit on the merits within five or ten years after the provisional disposition was executed.”

② Therefore, since five or ten years have not passed since the provisional disposition order of this case was executed, there is no room for recognizing such grounds for revocation.

B) Interpretation of relevant legal provisions

1. Article 2 of the Addenda to the amended Civil Execution Act provides that "any objection against... any objection to the preservation order and any application for cancellation thereof filed before this Act enters into force shall be governed by the previous provisions". In relation to the interpretation of the above provision, the following positions may be changed:

(2) The position that only “a request filed prior to the enforcement of this Act” portion shall be construed as “a preservation order.”

From the above point of view, the above provision of Article 2 of the Addenda can be interpreted as having been in accordance with the previous provision regarding the application for cancellation of the order for preservation filed prior to the enforcement of this Act, as alleged by the respondent, and it is recognized that the period of “five years” or “10 years” under the former Civil Procedure Act has expired pursuant to the Civil Execution Act prior to the amendment, as stated in the attached Table related Acts.

(3) The position that only “application for cancellation before this Act enters into force” shall be deemed “application for cancellation”.

From the above point of view, Article 2 of the Addenda is interpreted as above, the Civil Execution Act prior to the amendment is applied to the case where the cancellation application is made before this Act enters into force, and if there is an application for cancellation (as to the preservation order) after this Act enters into force, the amended Civil Execution Act shall apply to the case where it is applied.

(4) The correct interpretation of Article 2 of the Addenda above

Article 2 of the Addenda provides that “A case of objection or cancellation against the order of preservation before this Act enters into force.” The case of the order of preservation and the case of the application for cancellation is separate from the case of the order of preservation and the case of the application for cancellation. The proviso of Article 2 of the Addenda provides that “where the order of preservation is declared as a final judgment, it shall be governed by the previous provision. Where the application of cancellation is made after this Act enters into force.” However, if interpreted as above, it would naturally be the same, and there is no reason to place the above proviso provision. In light of the above, it is reasonable to interpret that “the part applied before this Act enters into force” under Article 2 of the Addenda is limited to “application for cancellation.”

⑤ If so, even if the application for provisional disposition of this case was made on April 19, 2001 prior to the enforcement of the amended Civil Execution Act, it is apparent that the “application for revocation” of the provisional disposition of this case was made on September 28, 2009, which was after the enforcement of the amended Civil Execution Act, and thus, in this case, the amended Civil Execution Act applies.

6. Therefore, the respondent's assertion on the premise that the provisions of the Act prior to the enforcement of the amended Civil Execution Act are applied pursuant to Article 2 of the above Addenda is without merit.

4. Conclusion

Therefore, it is recognized that the grounds for revocation of the provisions of Articles 301 and 288(1)3 of the amended Civil Execution Act are recognized, and without having to determine the remaining grounds for revocation, the application of this case is to be revoked for the reason of revocation of the provisional disposition order of this case, and is so decided as per Disposition.

[Attachment]

Judges Cho Jong-young (Presiding Judge)