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(영문) 서울고등법원 2016.05.31 2015누61605
산지전용허가복구설계승인신청반려처분취소
Text

1. Revocation of a judgment of the first instance;

2. Each conversion permission that the Defendant granted to the Plaintiffs on October 29, 2013.

Reasons

1. The reasoning of this court’s judgment citing the judgment of the court of first instance is different from that of the judgment of the court of first instance.

Inasmuch as the reasoning of the judgment of the court of first instance is the same as that of the judgment of the court of first instance, it shall be quoted in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Parts in height:

C. First, we examine the second argument.

1) According to Articles 39(1) and 40(1) of the former Mountainous Districts Management Act, a person who has obtained permission to divert a mountainous district under Article 14 of the former Mountainous Districts Management Act shall restore a mountainous district upon obtaining approval from the competent authority when the purpose of conversion of a mountainous district is completed or the period of conversion expires. As such, even if the period of conversion of a mountainous district expires, the person who obtained permission to divert a mountainous district has not been completed, the person who obtained permission to divert a mountainous district has a duty to recover the mountainous district under the aforementioned provisions. Therefore, the disposition of the competent authority which granted permission to divert a mountainous district was unlawful for the reason that the application for the approval for recovery of a mountainous district was not completed (see, e.g., Supreme Court Decisions 2009Du18035, Feb. 11, 2010; 2005Du16949, May 31, 2007). Accordingly, the Plaintiffs’ respective application for permission to divert a mountainous district has not been completed by the Plaintiffs’ respective application for recovery of the mountainous district.

3. Thus, the plaintiffs' claims are justified.

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