Whether a person who has succeeded to the ownership of the land discovered without a person who has discovered a hot spring can be a hot spring developer under the Hot Spring Act (negative)

A person who intends to discover a hot spring may perform an act for exploration of a hot spring on land owned by another person by obtaining permission, and if a person who has discovered a hot spring by exploration, etc. reports it and repairs it, the profit to obtain excavation permission, etc. is given to the person who has discovered a hot spring, and the person who is not the one who has discovered a hot spring may report it to the person who has discovered a hot spring on the ground that he/she is the owner of the ground, or the person who has succeeded to the ownership of the land where a hot spring has been discovered may not be a new hot spring developer under the Hot Spring Act because he/she has acquired the ownership of the land where a hot spring has been discovered, even though the person who has succeeded to the ownership of the land where a hot spring was discovered after reporting it to the

Articles 17(1), 18, and 19(1) of the former Hot Spring Act (amended by Act No. 5121 of Dec. 30, 1995)

Jeju Tourist Hotel Co., Ltd.

Cheongong-gun

Free Trade Development Co., Ltd.

Daegu High Court Decision 96Gu11823 delivered on August 29, 1997

The judgment below is reversed, and the case is remanded to the Daegu High Court.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below rejected the allegation that it was unlawful for the plaintiff to change the name of the hot spring developer to the intervenor on the ground that the plaintiff excavated the underground of the land (location omitted) in Gyeongbuk-gun (hereinafter "the land in this case") and discovered hot spring water on March 5, 1993, and reported it to the defendant on November 22, 1993 through water quality inspection, and the defendant accepted it on July 24, 1993, and the intervenor joining the defendant (hereinafter "the intervenor") did not report the change of the name of the hot spring developer to the defendant on July 24, 1995 after the successful bid of the land in the auction procedure. The plaintiff's assertion that it was unlawful for the plaintiff to change the name of the hot spring developer to the intervenor on the ground of the land in this case which is the ground of the hot spring developer, that is, the hot spring developer's hot spring which is a kind of ground in this case to the intervenor, and thus, it cannot be viewed that it belongs to the plaintiff's right to the ground in this case.

2. According to the former Hot Spring Act (amended by Act No. 5121 of Dec. 30, 195), a person who has discovered hot spring through the exploitation or exploration of hot spring in an area other than a hot spring district shall report to the head of the competent Si/Gun (Article 17(1)); a person who has reported a hot spring may give priority to the permission for the excavation of land and the permission for the exploitation of hot spring; a person who has reported a hot spring in an area other than a hot spring district may conduct an investigation with the permission of the head of the competent Si/Gun; a person who intends to explore a hot spring in an area other than a hot spring district may, if particularly necessary, enter and inspect another person's land; a person who has obtained such permission may change or remove obstacles (Article 19(1)); if any damage has occurred to another person's land or goods due to the entry, investigation, or alteration or removal of obstacles (Article 20); and a person who intends to excavate land with the permission of the Do governor shall obtain the permission (Article 5(2).5).

In full view of these provisions, a person who intends to discover a hot spring may perform an act for exploration of a hot spring on the land owned by another person with permission, and where a person who has discovered a hot spring due to exploration, etc. reports it and repairs it, a person who has discovered a hot spring may report it to a hot spring developer on the ground that he/she is not a person who has discovered a hot spring, or a person who has succeeded to the ownership of the land where a hot spring has been discovered can report it to a hot spring developer on the ground that he/she is the owner of the ground, or a person who has succeeded to the ownership of the land where a hot spring was discovered can not be a new hot spring developer under the Hot Spring Act. Thus, even if the intervenor succeeded to the ownership of the land of this case,

The Supreme Court precedents cited by the court below are related to the judicial nature of the hot spring right prior to the enforcement of the Hot Spring Act, and it is inappropriate to invoke the legal status of the hot spring developer under the Hot Spring Act.

Nevertheless, the court below held that the intervenor's change of the name of hot spring developer to the intervenor was lawful solely on the ground that the intervenor acquired ownership by winning a successful bid for the land of this case, which is the ground of hot spring. The court below erred in the misapprehension of legal principles as to the Hot Spring Act, which affected the conclusion of the judgment. Thus, the ground of

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Chang-hun (Presiding Justice)