(영문) 서울행정법원 2015.6.5. 선고 2014구합20278 판결

The cancellation of registration of mining rights and the cancellation of registration of extinguishment against the plaintiff (Appointed) and the designated parties on May 23, 2014 shall be revoked.

Reasons

1. Details of the disposition;

A. The Plaintiff (Appointed Party) and the designated parties (hereinafter referred to as “Plaintiffs”) jointly (representative: B) are persons who have jointly registered the mining right (hereinafter referred to as “mining right of this case”) as indicated in the table below (hereinafter referred to as “mining right of this case”). (Period of existence: 2005,9.1, 2005 or - August 31, 2012)

A person shall be appointed.

B. On December 26, 2007, B filed a prospecting plan report with the Governor of the Gyeonggi-do on the prospecting period for the mining right of this case from December 26, 2007 to December 25, 2010, and the Governor of the Gyeonggi-do accepted the prospecting plan.

C. The Gyeonggi-do Governor extended the prospecting period of the instant mining right from December 26, 2010 to December 25, 201 upon the application for extension of the prospecting period of B. D. On September 22, 2011, the Gyeonggi-do Governor applied for extension of prospecting period from December 25, 201 to the Gyeonggi-do Governor for extension of prospecting period from December 25, 2011. However, the Gyeonggi-do Governor rejected the above extension application of B on September 22, 2011.

E. B filed an administrative litigation against the above return disposition with Suwon District Court 2013Guhap1615, but the Suwon District Court rendered a judgment dismissing the Plaintiff’s claim on October 10, 2013, and the above judgment became final and conclusive as it is.

E. Meanwhile, on the other hand, on June 29, 2012, the Defendant: (a) filed an application for a permit to extend the term of the instant mining right from September 1, 2012 to August 31, 2017; (b) notified the Defendant on May 23, 2014 that the instant mining right was revoked and extinguished pursuant to Article 35 subparag. 3 of the Mining Industry Act on the ground that the Defendant did not obtain recognition of the prospecting record under Article 41(2) and (3) of the Mining Industry Act.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2, 6, Eul evidence 1 (including each number), the purport of the whole pleadings

2. We examine whether the part of the lawsuit in this case seeking cancellation of the registration of extinguishment of a mining right is legitimate or not among the lawsuits in this case. The plaintiff's claim for this part is a result of requesting cancellation of the registration of cancellation under the Decree on the Registration of Mining Industry, i.e., cancellation of the registration of cancellation under the Decree on the Registration of Mining Industry, and ultimately seeking administrative measures against administrative agencies (see Supreme Court Decision 65Nu145, Apr. 6, 196). It is not allowed under the current Administrative Litigation Act (see, e.g., Supreme Court Decision 91Nu4126, Feb. 11, 192). The part seeking cancellation of the registration of extinguishment of a mining right in this case is unlawful (in addition, the mining right is established by the permission of the Minister of Trade, Industry and Energy on the application of the mining right, and Article 38 of the Mining Industry Act and Article 13 of the Decree on the Registration of Mining Industry Act or ex officio, and the registration of the mining right is not effective.

On the other hand, the defendant's disposition of cancellation of mining rights against B on May 23, 2014 is called "the disposition of cancellation of mining rights".

3. The parties' assertion

A. The plaintiffs' assertion

1) After the Defendant granted the opportunity to present opinions only to B who is the representative, the Defendant notified the instant disposition only to B, and since the representative cannot be deemed to represent joint mining right holders until the notice of indivative administrative disposition and its arrival is valid, the instant disposition is not legally delivered to the parties, and therefore, it cannot be deemed that the period of filing a lawsuit has expired.

2) The instant disposition is not only null and void due to the foregoing procedural defect, but also to the existence of external significant and apparent defects as follows, and is not subject to the limitation on the filing period.

A) On the instant notice of disposition, the Defendant, based on the disposition that “a prospecting record is recognized under Article 41(2) and (3) of the Mining Industry Act” but fails to comply with it, and thus revocation of registration under Article 35 subparag. 3 of the Mining Industry Act is deemed to be subject to the application of the former Mining Industry Act (amended by Act No. 9982, Jan. 27, 2010; hereinafter “former Mining Industry Act”) rather than the former Mining Industry Act (amended by Act No. 9982, Jan. 27, 2010; hereinafter “former Mining Industry Act”). As such, the Defendant also submitted the notice of the registration for extension of the term of mining right (hereinafter “the notice of extension of the term of existence”).

The term "the right to extract" introduced in the Mining Industry Act was used, and there is a defect in the grounds and reasons for the disposition of this case.

B) As above, the Defendant notified the fact that the Plaintiffs’ mining rights were extended on July 11, 2012, and the Plaintiffs trusted this and disbursed the investment cost equivalent to KRW 800 million. Nevertheless, the revocation of the Plaintiffs’ mining rights on the ground that prospecting was not submitted is unlawful against the principle of trust protection.

C) In light of the public interest to be achieved through the cancellation of the mining right of this case and the disadvantage of the plaintiffs caused thereby, the instant disposition was erroneous in deviation from discretionary power.

B. Defendant’s assertion

The notice of the instant disposition was served on B, who is the representative of the joint mining right holder, on May 27, 2014, and the instant lawsuit was unlawful as it was filed after the lapse of 90 days thereafter. In addition, the instant mining right was lawful and reasonable, as it did not obtain recognition of prospecting records under the Mining Industry Act.

4. Relevant statutes;

It is as shown in the attached Form.

5. Determination as to the claim for cancellation of the instant disposition

A. Determination as to the defense prior to the merits

According to Article 21 (1) of the Administrative Procedures Act, in cases where an administrative agency imposes an obligation on a party or imposes a disposition restricting his/her rights and interests, it shall notify in advance the party concerned of the title of the disposition, name or title and address of the party concerned, facts causing the disposition, details of the disposition and legal basis thereof, methods of handling the opinion if not presented, name and address of the agency presenting the opinion, time limit for submitting the opinion,

However, according to Article 11 of the same Act, when multiple parties jointly perform acts relating to administrative procedures, representatives may be selected, and the selected representatives may perform all the acts relating to administrative procedures on behalf of the parties who have selected them as representatives. Meanwhile, Articles 30 and 17 of the Mining Industry Act impose obligations to appoint representatives and report in relation to joint mining right holders, and the representatives shall represent joint mining right holders with respect to the State.

In full view of the provisions of the above Mining Act and the Administrative Procedures Act, in the case of a joint mining right holder, the representative may perform all acts for the joint mining right holder in an administrative procedure against the State. Therefore, even if an administrative agency gives prior notice or notification of a disposition only to the representative in relation to a joint mining right, the notification shall be effective to the joint mining right holder in entirety. In fact, the defendant's permission to extend the term of the mining right of this case was made against B, and the Gyeonggi-do Governor's revocation lawsuit against the provisional decision to extend the term of the mining right of this case was filed independently by B, B, upon receipt of prior notice of the disposition of this case and written opinion at the hearing, and if a number of joint mining right holders always take administrative procedures against all of them, it may cause considerable obstacle to the development of prompt mineral resources, and there is no reason to regard it differently. In light of the above provisions of the Mining Industry Act or the Administrative Procedures Act, it is reasonable to deem the effect of the disposition as to all of the plaintiffs in this case's notification.

According to the evidence Nos. 1 and 2, it is acknowledged that the notice of the instant disposition was served on B on May 27, 2014, and it is apparent that the instant lawsuit was filed on November 20, 2014, which was 90 days after the lapse of 90 days from the lawsuit. Thus, the instant lawsuit is unlawful as it was filed after the lapse of the period for filing the lawsuit prescribed in Article 20 of the Administrative Litigation Act. Therefore, the Defendant’s prior defense on the merits is reasonable.

In this regard, although the plaintiffs asserted that the restriction on the period of filing a lawsuit is not applied to the effect that the disposition of this case is null and void, the lawsuit of this case is unlawful, and the plaintiffs' assertion is not reasonable, even in the case of an administrative litigation seeking its revocation in the sense of declaring the invalidity of an administrative disposition (see, e.g., Supreme Court Decisions 92Nu11039, Mar. 12, 1993; 2000Du6299, Feb. 26, 2002). Therefore, even if the plaintiffs seek its revocation in the sense of declaring the invalidity of the disposition of this case as a matter of course, the period of filing a lawsuit under Article 20 of the Administrative Litigation Act should be observed. Thus, as seen earlier, the lawsuit of this case is filed after the lapse of the period of filing a lawsuit of this case, and the plaintiffs' claim is not reasonable, and there is no ground for invalidation of the disposition of this case (

B. assumptive determination (whether there is a ground for invalidation)

1) In order for an administrative disposition to be deemed null and void as a matter of course, the mere fact that there is an illegality in the disposition is insufficient, and the defect is serious in violation of the relevant laws and regulations and should be objectively obvious (see, e.g., Supreme Court Decision 2011Du5001, Feb. 23, 2012). Thus, the Plaintiffs’ assertion on this part is without merit, given that there is a significant and obvious reason for illegality in the disposition of this case, such as the following (ii) through

2) Whether the grounds for the disposition and the duty of presentation for reasons are violated

A) The statutes applicable to the instant disposition

As the Mining Industry Act was amended by Act No. 9982 on January 27, 2010, considering the stage of mine development, the overall structure of mining rights, such as transferring mining rights into the exploration right and the extraction right and changing the term of existence. Article 4 of the Addenda of the above Act stipulates that mining rights for which authorization of mining plans under the previous Article 42 has not been obtained at the time of the enforcement of the above Act shall be governed by the previous provisions, notwithstanding the amended provisions of the above Act. According to the purport of the entire pleadings, the Plaintiffs did not obtain authorization of mining plans for the mining rights of this case as of January 28, 201, which is the enforcement date of the above Act, so the former Mining Industry Act shall apply to the mining rights of this case before the above amendment pursuant to Article 4 of the above Addenda.

B) Article 23(1) of the Administrative Procedures Act provides that an administrative agency shall provide the basis and reasons for a disposition to the parties when it takes a disposition. This purport is to exclude the arbitrary decision of the administrative agency and allow the parties to properly cope with the administrative remedy procedure. Thus, in full view of the contents stated in the written disposition, related Acts and subordinate statutes, and the overall process up to the disposition, in a case where it is sufficiently recognizable that the parties to the disposition were made at the time of the disposition, and it is deemed that there was no particular hindrance to moving into the administrative remedy procedure, if the grounds and reasons for the disposition are not specified in the written disposition, such disposition cannot be deemed unlawful (see Supreme Court Decision 2007Du20362, Dec. 10, 2009).

C) According to the statement of evidence Nos. 1 and 1 of this case, it is recognized that the defendant stated in the notice of disposition of this case that "Article 41 (2) and (3) of the Mining Industry Act" and "Article 35 (3) of the Mining Industry Act". However, in the case of Article 41 of the above, since the title itself differs from the current law, it can be easily known that the title itself is not the provisions of the current law, and that it is revoked because it is not recognized as the prospecting performance. In addition, in the notice of the cancellation of the mining right of this case (Evidence No. 2 of the title "No. 9774) of the Mining Industry Act (No. 2 of the title "No. 974), it stated that it is a disposition under the previous provisions of the Mining Industry Act, stating that it is scheduled to be revoked, and in fact, B attended the hearing procedure and stated its opinion as to the reason why it is impossible to recognize the prospecting performance.

On the other hand, the notice of extension of the term of the mining right of this case is separate from the cancellation of the mining right of this case due to non-existence of prospecting records. In addition to the former Mining Act, the mining right holder can obtain authorization of mining plan (mining plan) after obtaining approval of prospecting records in the amended Mining Industry Act. Thus, even if the defendant used the term "explosive right" by mistake in the notice of extension of the term extension period, it cannot be deemed that the defendant's use of the term "explosive right" has caused interference with administrative remedy procedures after granting extraction rights to the plaintiffs who did not obtain approval of prospecting records (mining plan) and mining plan (mining plan) or causing confusion to the plaintiffs. In full view of the above points, the plaintiffs cannot be seen as being sufficiently aware of which grounds and disposition was made at the time of the disposition of this case, and it is recognized that there was no particular obstacle to administrative remedy procedures. Thus, this part of the plaintiffs' assertion is without merit.

3) Whether the principle of protection of trust is violated

In administrative legal relations, in order to apply the principle of the protection of trust to the acts of an administrative agency, first, the administrative agency should name the public opinion that is the subject of trust to the individual, second, the administrative agency's opinion statement that is justifiable and trusted to the trust of the individual should not be attributable to the individual; third, the individual should have trusted the opinion statement and committed any act corresponding thereto; fourth, by the administrative agency's disposition contrary to the above opinion statement, the individual's trust in the name of the opinion statement should be infringed; last, when taking an administrative disposition in accordance with the above opinion statement, it should not be likely to seriously undermine the public interest or legitimate interests of a third party (see, e.g., Supreme Court Decision 2004Du13592, Feb. 24, 2006).

With respect to the instant case, as seen earlier, the Defendant’s permission for extension of the term of mining rights in B on June 29, 2012 to grant permission for extension of the term of mining rights in the instant case from September 1, 2012 to August 31, 2017. However, the Mining Industry Act provides that a mining right holder may cancel his/her mining right if the mining right holder fails to perform his/her obligations, such as reporting of prospecting plans, prospecting records, submission of mining plans, etc. within a certain period after the establishment, and submission of mining plans, etc., after the establishment, the mining right may be cancelled. In the above notice of extension of the term of mining, the above provision states that “The time period of follow-up management shall not be affected by the cancellation of the mining right by performing the obligations under the Mining Industry Act,” and in light of the first page of the mining ledger submitted by the Plaintiffs, “where the mining right is not fulfilled within the term of mining right, the mining right may be cancelled” as well as the Plaintiff’s opinion that the remainder of the term of the above extension can not be cancelled.

4) Whether the discretion is deviates or abused or abused

While mineral resources are basic resources used as the foundation of the industry and have a significant impact on the national economy, as they are buried exclusively in the national land, it is necessary to establish a mining right under the state’s involvement in the establishment of a mining right, and once a mining right is established, it is necessary to induce the development of mineral resources that belong to the same according to the purport. The purpose of revocation of a mining right due to nonperformance of the obligations under the Mining Industry Act is to promptly adjust idle mining rights by holding a mining right under the name of a holder without developing a mining right for a long period of time (see, e.g., Supreme Court Decisions 9Du2871, May 25, 1999; 9Du2871, Feb. 5, 199). The evidence submitted by the plaintiffs alone cannot be deemed to have been significantly significant in light of the above public interest, and there is no other evidence to acknowledge this. Thus, the disposition of this case cannot be deemed to have been deviated from or abused by discretionary authority.

5. Conclusion

Since the lawsuit of this case is unlawful, it is so decided as per Disposition by the assent of all participating Justices.