Kim Jong-ho (Attorney Park Jong-ho, Counsel for the plaintiff-appellant)

Market for the United States

October 20, 2005

Suwon District Court Decision 2004Guhap1422 delivered on August 11, 2004

1. Revocation of a judgment of the first instance;

On February 25, 2004, the Defendant revoked the Defendant’s disposition on February 25, 2004 to revoke the Plaintiff’s application to revoke and reflect the application to revoke a reserved forest with respect to 22-1 forest land in the Hansung-si, Hansung-si, Hansung-si and 25,219 square meters, and 22-3 forest land in this Ri.

2. The costs of the lawsuit are assessed against the defendant in both the first and second instances.

The same shall apply to the order.

1. Details of the disposition;

A. On February 26, 2002, the Plaintiff: (a) received a successful bid for a total of 29,958 square meters, such as 22-1 forest land in Taesung-si and 25,219 square meters; and (b) 22-3 forest land in ricle 22-3 forest land in ricle 4,739 square meters; and (c) acquired ownership by paying the price.

B. Thereafter, the Plaintiff filed an application for permission to construct a steel framed building with a total floor area of 1,030.72 square meters on the ground of the above 2,585.60 square meters, which is part of the above mountain 22-1 forest, and for permission to divert farmland with a total floor area of 8,976 square meters on a site for constructing a warehouse with a total floor area of 17,710 square meters among the above mountain 22-1 forest and the above mountain 22,449 square meters among the above mountain 22-1 forest and the above mountain 22,476 square meters on the aggregate, but the Defendant rejected each application for permission to divert farmland for the purpose of constructing a building site with a total floor area of 8,976 square meters on the ground of the above mountain 2,585.60 square meters on the ground of the above mountain 222-1 forest and the application for permission to divert farmland for other purposes on January 15, 2003.

C. The plaintiff filed a lawsuit seeking the revocation of each of the above non-permission dispositions with the Suwon District Court (2003Guhap3582, and 2003Guhap6314): The plaintiff filed a lawsuit seeking the revocation of each of the above non-permission dispositions (2003Guhap3582, and the lawsuit seeking the revocation of the revocation of the non-permission disposition: 2003Guhap6314), and filed a petition with the defendant for the revocation of the designation of a reserved forest as to the whole land 29,958 m29 m29,000 m21, while the lawsuit is pending.

D. On this ground, the Defendant rendered the instant disposition, which rejected the Plaintiff on the 25th of the same month, on the ground that “the designation and cancellation of a reserved forest is not to cancel the procedure for application of the landowner, etc., but to cancel the designation ex officio by the head of Si/Gun, if any of the grounds stipulated in Article 57 of the Forestry Act arises.” Since the instant application has functioned in the land cultivated as farmland from 1980 to the surrounding areas, or in the formation of a water source for the supply of agricultural water to the farmland in the neighboring areas, tin, pari, path, and path of Seo-ri, Seoyang-ri, Seoyang-ri, and Seoyang-ri, it cannot be deemed that the instant application price has achieved the purpose of designation as the Suwon Yangyang Reserve, or has lost the purpose of designation

[Ground of Recognition] Unsatisfy, Gap evidence 1-3 and Gap evidence 4

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

First, since the application form of this case is only forest land and is actually used as farmland for cultivating crops since 20 years ago, it should be regulated as farmland prescribed in the Farmland Act. However, since the application form of this case is a forest, the defendant designated the application form of this case as a flood reserve forest on April 3, 1990, the designation of the above reserved forest is naturally null and void.

Second, even if it is not so, since the application of this case was used for a long period of time as farmland at the time of the disposition of this case, it cannot be deemed as a forest subject to the regulation of the Forestry Act, and thus, the purpose of designating it as the original source recreational forest is lost. Thus, even though the defendant cancels the designation of the reserved forest at the place of the application of this case pursuant to Article 57 subparagraph 1 of the Forestry Act, it is illegal as it violates the Forestry Act or deviates from or abused discretion.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) Designation of a reserved forest in the instant application site

The instant application is located at a distance of about 700 meters from the East-dong reservoir to the north-dong, and at least, unlike the indication in the public record prior to the 1980s, it has been used as farmland other than a forest. [No evidence exists to find out the developments leading to the instant application being used as farmland, unlike the indication in the public record, there is no evidence to find it. Although the Defendant asserted that the instant application was used as farmland because the forest was arbitrarily altered due to the change of its form and quality after the designation as a reserved forest, it is insufficient to recognize it solely on the basis of the statement in the evidence No. 10 (the same as the evidence No. 6), and there is no evidence to

동방저수지는 화성시 팔탄면, 장안면 일대 약 228㏊의 농경지를 관리면적으로 하여 연간 765,000㎥의 용수를 공급하는 역할을 하고 있다.

On January 5, 1966, along with neighboring forests, the application of this case was designated and publicly announced as a Class 1 water source reserve of the Dong bank reservoir (No. 3420-1 of the Gyeonggi-do Public Notice).

After that, in accordance with the amendment of the Enforcement Rule of the Forestry Act of June 19, 1989, the defendant, who was delegated by the Governor of the Gyeonggi-do with the authority of the designation of a reserved forest within the jurisdiction of the 1,000m forest (the designation of a Class 1 source forest is changed from the "forest within 2,000m from the full water level of the reservoir" to the "forest within 1,000m" in accordance with the amendment of the Enforcement Rule of the Forestry Act of the Forestry Act as of June 19, 1989, re-designated the application of this case and its neighboring forests to the Class

According to Article 4 of the Guidelines for Management of Reserved Forests, the period of designation of reserved forests prescribed in Article 44(2) of the Enforcement Rule of the Forestry Act shall be 20 years, but if the purpose of designation of reserved forests has not been achieved even after the period of designation expires, the period of designation of reserved forests may be extended by up to 20 years.

(2) Changes in the volume of inflows;

If the application price of this case is cancelled and developed from a reserved forest, according to the survey of changes in the volume of inflows into the same reservoir, the presumption of topographical space information engineer, and the examination report by the pregnant technician of water supply and sewerage systems, the situation before the development of the application site of this case shall be deemed to be an area outside the intersection with trees, etc., and the situation after development shall be deemed to be the outdoor workplace of the invested container where two buildings are newly constructed on the ground as the plaintiff intended, as the case is, after the development of the land, the excellent coefficient of outflow (if rainwater is cut off, the level of outflow that flows into the ground without being flown as it is), after the development of the land, is larger than the quantity that flows into the ground, and the excellent quantity that flows into the reservoir is greater than the quantity that flows into the ground, while the excellent quantity that flows into the reservoir after the development of the reservoir is somewhat reduced, the increase in quantity of water flows into the ground shall be calculated according to the frequency of increase in 20 years and 260 years in metres.

(3) Revocation of the designation of a reserved forest on neighboring land;

The Defendant, under the same conditions as the instant application, cancelled the designation of a reserved forest with respect to land 15-3 (the lot number was converted from No. 21-3 to Mar. 11, 1991) in No. 15-3 (the land which was converted from No. 21-1 to Mar. 11, 1991) constituting the boundary between the instant application site and the instant application site, and with respect to land of No. 77-3 (the land converted from No. 53-1, Jul. 1, 1996) which is far adjacent to the Dong bank reservoir, even more adjacent to the instant application site, pursuant to Article 9 of the Addenda to the former Forestry Act (amended by Presidential Decree No. 1485, Dec. 31, 1994) and Article 8 of the Addenda to the former Enforcement Decree of the Forestry Act (amended by Presidential Decree No. 15081, Jun. 23, 199).

[Basis] Evidence Nos. 2, evidence Nos. 14-1 through 4, evidence Nos. 18-1 through 7, evidence Nos. 21, 22, 25, 26, 27, evidence Nos. 24-1 through 4, evidence Nos. 28-1, 28-2, evidence Nos. 29-1 through 57, evidence Nos. 1 through 3 and 7, and the purport of the whole pleadings

D. Determination

The first class water source development reserved forest shall be designated for forests around reservoirs that are deemed to have an absolute impact on the low water supply 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), and when it is deemed that the purpose of the designation of a reserved forest has ceased to exist, 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 for the instant application land has ceased to exist, namely, whether the instant application land has an absolute impact on the low water supply of the reservoir at the same time.

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 are applicable 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 current status as the application price of this case can be designated as a reserved forest for land which is not a forest as well as land which is not a forest (Article 2(1)1 of the Forestry Act). However, the designation of a reserved forest is, in principle, for the forest under Article 2(1)1 of the Forestry Act. Since the current status has been used as farmland which is not a forest during the long period from the past 1980s to the time of the disposition of this case, even if the application price of this case was cancelled and developed as a warehouse site prior to the change in the volume of excellent reserved oil, it cannot be seen that there is no absolute effect on the application price of the plaintiff's.

3. Conclusion

If so, the plaintiff's claim seeking the cancellation of the disposition of this case is justified, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance is revoked and the disposition of this case is revoked and it is so decided as per Disposition.

Judges Kim Jong-soo (Presiding Judge)