(영문) 서울고등법원 2013.7.5.선고 2012누36783 판결

The judgment of the first instance is revoked. The defendant's disposition to refuse to purchase mining rights against the plaintiff A on July 7, 2011 shall be revoked.

Reasons

1. Quotation of judgment of the first instance;

The reasoning of the court's explanation concerning this case is as follows. Thus, the reasoning of the court's reasoning is identical to that of the judgment of the court of first instance, and thus, it is accepted by Article 8 (2) of the Administrative Litigation Act and the text of Article 420

○ The 5th through 6th 21th 16th 21th 16th 6th 21th 2th 200 of the judgment of the first instance court is modified as follows. In the case of classifying administrative acts into indecent acts and discretionary acts, judicial review of both parties shall be conducted; in the case of the former, the court shall draw up a certain conclusion through the interpretation and application of the facts-finding and the relevant laws and regulations due to the inherent continuity of the laws and regulations; and in the latter case, the court shall decide the legitimacy of the judgment of the administrative agency in its own position; however, in consideration of the possibility of public interest based on the discretion of the administrative agency, the court shall examine only the deviation and abuse of discretionary power without drawing its own conclusion; the examination of the deviation and abuse of discretionary power is subject to that determination (see, e.g., Supreme Court Decision 2004Du6181, Jul. 14, 2005).

In light of the form, content, purpose, etc. of the relevant provisions, even if the extraction of minerals is restricted in the wetlands protection area pursuant to Article 13 of the Wetlands Conservation Act, the defendant does not have a duty to comply with the request for purchase by the mining right holder under Article 20-2 (1) of the same Act, and there is discretion to decide whether to purchase the minerals in consideration of various circumstances, such as the occurrence and degree of specific losses incurred to the mining right holder, the process of acquiring the mining right, and the scope of the budget for the relevant year. Thus, the disposition of this case which refused the request for purchase by the plaintiffs shall be deemed to

However, the following circumstances acknowledged by the evidence as seen earlier, namely, ① the part of each of the instant mining rights at the time of the instant disposition, but there was no mining plan and mining records on the part of the public waters proposed by the Plaintiffs, so it is difficult to deem that specific losses were incurred to the Plaintiffs due to the designation of the wetlands area (if specific losses were incurred to the part of the public waters after the purchase of the instant mining rights, the claim for purchase can be filed again), ② the designation and public notice of the wetlands protection area was made by the Plaintiff B and the Plaintiff C before the acquisition of each of the instant mining rights, and thus, the Plaintiff B and C would be deemed to have purchased each of the instant mining rights with the knowledge of the fact that each of the instant mining rights was restricted, by discretionary determination, and thus, the Defendant’s disposal of each of the instant mining rights, which was refused to claim purchase of each of the instant mining rights, and thus, cannot be deemed to have been erroneous in the determination process, or abused or abused its discretionary power by being in violation of the principle of proportionality and equality. Therefore, this part of the Plaintiffs’ assertion is without merit.

2. Conclusion

Therefore, the plaintiffs' claim shall be dismissed as it is without merit, and the judgment of the court of first instance is justified as it is so decided as per Disposition.