A. Legal nature of the measure of approving mining plan (=patum discretion)

(b) The case holding that it is not an abuse of discretionary power to issue an unauthorized disposition where the mining plan is likely to damage natural scenery and pollute the water quality;

A. In light of the purpose of the system that requires authorization of mining plans prior to mining in order to prevent infringement of public interest, such as damage to natural scenery and water pollution of water sources, etc. in the course of mining development, and the purpose of the administration that should realize public interest, when a mining plan is deemed to be contrary to important public interest, authorization may be refused. If a mining plan is not approved, justifiable reasons should be presented, and if it is not approved, authorization of mining plans should not be arbitrarily authorized. Thus, authorization of mining plans should be deemed to belong to the act of binding discretion.

(b) The case holding that it is not a abuse of discretionary power to issue an unauthorized disposition where the mining plan causes damage to natural scenery and is likely to pollute the water quality;

Article 47(1) of the Mining Industry Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Lee Dong-young et al., Counsel for plaintiff-appellant)

Plaintiff

Do Governor of Chungcheongbuk-do

Seoul High Court Decision 92Gu16951 delivered on November 3, 1992

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The grounds of appeal (to the extent of supplement in case of supplemental appellate brief filed on January 26, 93 and February 17, 93) are examined.

1. On the assertion that there is an error in the procedure of adjudication on administrative appeal

In the adjudication procedure on administrative disposition, the grounds such as having violated the procedural provisions under the Administrative Appeals Act are inherent inherent defects in the adjudication disposition itself, and can be asserted as illegal grounds in the lawsuit seeking the cancellation of the adjudication disposition, but in the lawsuit seeking the cancellation of the original disposition, it cannot be asserted as illegal grounds (see Article 19 of the Administrative Litigation Act). The judgment below to the same purport is correct, and there is no illegality such as the theory of lawsuit. There is no reason to discuss.

2. As to the legality of the non-authorization of mining plan

In light of the purpose of the system that allows mining plans to be approved prior to mining for the purpose of preventing infringement of public interest such as damage of natural landscape and water pollution of water sources, while guaranteeing the exercise of mining rights, and the purpose of the administration that should realize the public interest, if the mining plan is deemed to be contrary to the important public interest, the authorization may be refused. If the mining plan is not approved, the justifiable reason should be presented, and if the mining plan is not approved, the authorization of the mining plan shall not be arbitrarily authorized. Thus, the authorization of the mining plan shall be deemed to belong to the binding discretion.

According to the reasoning of the judgment below, the court below acknowledged that the land subject to the application for the authorization of the mining plan of this case is a natural environment conservation area in the Act on the Utilization and Management of the National Territory, and that the land designated and publicly announced as one zone for the preservation of water quality in accordance with the former Environmental Conservation Act is likely to harm natural landscape due to felling of standing trees, changing the form and quality of land, etc., and, in the case of the plaintiff's mining plan of this case, it is located at a distance of 160 meters from the Cheongh, Blue and Blue, which is located within a distance of 160 meters from the lue and Blue, and there is a risk of remarkably damaging the water quality due to mining flow of waste water, waste water, waste stone, and dust, etc., and therefore, the mining plan of this case is against public interest in light

In light of the records, the fact-finding and the judgment of the court below are consistent with all of them, and there is no error of law such as misconception of facts due to a violation of the rules of evidence, misunderstanding of legal principles, lack of reasons, and violation of the constitutional principles, as pointed out in the theory of lawsuit. There is no reason

However, according to the provisions of Article 24 (1) 7 of the Enforcement Decree of the Forestry Act, in case of a reserved forest, when it is intended to use it as a site for mining and its accessory facilities under the provisions of the Mining Industry Act, the reserved forest may be diverted without the permission or consent of the Minister of the Korea Forest Service under Article 18 (1) of the Forestry Act. According to the provisions of the proviso of Article 90 (6) of the Enforcement Rule of the Forestry Act, the reserved forest which can be diverted is excluded from the prohibition of forest damage even if the diversion is not permitted. Thus, the court below erred in part of the part that the court below stated that the diversion of the reserved forest is a reserved forest and it is impossible to permit the forest damage because the mining plan of this case cannot be approved for any other reason. In addition, it is nothing more than criticism the fact-finding and decision of the court below on the grounds of the provisions of law unrelated to the use area of the

3. The appeal is dismissed as it is without merit, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-ho (Presiding Justice)