[1] Where the permission of forest damage can be denied even if the forest damage prohibition or restriction area is not applicable to the restricted area, and whether the disposition of refusal is in need of legal basis (negative)

[2] The case holding that there is a need for important public interest, such as maintaining national land and nature and preserving the environment as the reasons for denying an application for changing the form and quality of a forest

[1] Since forest damage acts directly affect the maintenance of national land and the preservation of the environment, even though the prohibition of forest damage or the restriction area under the relevant Acts and subordinate statutes is not limited to cases, the permission-granting authority may refuse to grant permission when it is deemed necessary to maintain national land and the nature and to preserve the environment, considering the current state, location, surrounding circumstances, etc. of the land subject to the application for permission for forest damage. In such a case, the permission-granting authority may refuse to grant permission without express grounds under the relevant Acts and subordinate statutes. The degree of infringement of public interest to be considered in granting permission for forest damage does not necessarily have to determine whether to grant permission or non-permission by setting a certain criteria based on the numerical value for the degree of damage to natural landscape, noise and dust, degree of water pollution, etc., but rather can decide whether to grant permission or non-permission in a case where it is deemed that there is a significant concern for public interest under social norms by taking into account all circumstances

[2] The case holding that since the forest in question plays an important role in providing the natural environment that is the forest in the broad active reclaimed area near a residential area, along with the surrounding forests, and it seems that there is sufficient value to preserve the natural landscape in its original state, such as where the natural rocks naturally cut away, such as pine trees and trees are inhabited, etc. according to the coastline, it is judged that the project to implement together with the change of the form and quality of the forest in question is not included in the minimum plan to preserve the natural environment in its business plan, and that the project to implement together with the change of the form and quality of the forest in question is not included in a relatively large-scale neighborhood living facility site development project, and if the application for change of the form and quality is permitted, the application for change of the form and quality of the nearby forest in question can only be partially permitted, and eventually, it would result in damage to the entire forest in question and neighboring forests which are still preserved in its natural condition, and therefore the head of local government's refusal to apply for change of the form and quality of the forest in question is a serious need for public interest.

[1] Article 90 (1) of the former Forestry Act (amended by Act No. 5079 of Dec. 29, 1995), Article 90 (1) 7 of the Enforcement Rule of the Forestry Act / [2] Article 90 (1) of the former Forestry Act (amended by Act No. 5079 of Dec. 29, 195), Article 90 (1) 7 of the Enforcement Rule of the Forestry Act

[1] [2] Supreme Court Decision 93Nu4854 delivered on May 27, 1993 (Gong1993Ha, 1914), Supreme Court Decision 95Nu6113 delivered on September 15, 1995 (Gong195Ha, 3429)

[Judgment of the court below]

Massung Guns

Seoul High Court Decision 96Gu16799 delivered on December 10, 1996

The judgment below is reversed. The case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. According to the reasoning of the lower judgment, the lower court determined that the Defendant’s disposition did not recognize that the Defendant’s act of changing the form and quality of the forest of this case constitutes a restricted or prohibited area from damaging the forest under Article 90(1)7 of the Enforcement Rule of the Forestry Act, and that the Defendant’s act of rejecting the Plaintiff’s application for permission for changing the form and quality of the forest of this case (hereinafter the instant disposition) with regard to the total area of 1,162 square meters and 1,172 square meters in the annexed drawing ( Address 2 omitted) of the lower judgment as to the total area of 1,323 square meters in the area of the forest of this case (hereinafter “the forest of this case”) among the 2,134 square meters in Gyeonggi-gun ( Address 1 omitted), and that the Defendant’s act of changing the form and quality of the forest of this case does not constitute an unlawful area where the Plaintiff’s application for permission for changing the form and quality of the forest of this case is not likely to seriously harm the surrounding forest form and quality of the forest of this case.

2. However, since forest damage acts directly affect the maintenance of national land and the preservation of the environment, even if it does not constitute a prohibited or restricted area as well as a case where the permission-granting authority may refuse to grant permission when it is deemed necessary for the important public interest, such as the maintenance of national land and nature and the preservation of the environment, considering the current state, location, surrounding circumstances, etc. of the land subject to the application for permission for forest damage. In such a case, the permission-granting authority may refuse to grant permission without express legal basis. The degree of infringement of public interest to be considered in granting permission for forest damage does not necessarily have to determine whether to grant permission or non-permission by setting a certain standard based on figures on the degree of natural landscape, degree of noise and dust, degree of water pollution, etc., but it does not have to determine whether to grant permission or non-permission by taking into account all the circumstances such as the content, scale, and method of the project specified in the business plan requiring forest damage and its impact on the environment (see, e.g., Supreme Court Decisions 93Nu4854, May 27, 1995).

However, according to the judgment of the court below and the records, the surrounding area of the forest of this case was an island of five square meters, which is the height of the coast. It is now connected to the land as reclamation project, and the dong is adjacent to the mountain site of six meters wide. The north is connected with the above road, and the natural rock is naturally cut off into the coastline. The forest land of this case, including the instant forest, forms a forest with small trees, tidal wave, and other miscellaneous trees, and the neighboring area of this case is formed into a forest with no specific relation formed with the area formed by reclamation project, and the neighboring area of this case is no more than 1,000 square meters. The forest of this case is located within 1,000 square meters adjacent to the surrounding area of the 1,000 square meters. The remaining forest of this case is located within 2,000 square meters adjacent to the surrounding area of the forest land of this case, and the entire area of the forest land of this case is no more than 1,000 square meters adjacent to the surrounding area of the forest of this case.

On the other hand, the forest of this case plays an important role in providing a astronomical environment called a astronomical forest, along with the surrounding forests and neighboring forests used as residential areas, and it seems that there is sufficient value to preserve the natural landscape in its original condition, such as where natural rocks inhabits trees, such as pine trees and sea transport according to the coastline naturally cut off. However, the business that the plaintiff intends to implement together with the alteration of the form and quality of the forest of this case is a relatively large-scale neighborhood living facility site development project, which is not included in the minimum plan to conserve the above natural environment according to the business plan. If the plaintiff's application for the alteration of the form and quality of the forest of this case is permitted, the application for the alteration of the form and quality of the adjacent forests can only be partially permitted, and eventually, the application for the alteration of the form and quality of the forest of this case and neighboring forests still preserved in the natural environment will result in damage to the whole forest of this case and neighboring forests. Thus, the defendant's refusal to apply for the alteration of the form and quality of the forest of this case is reasonable in light of public interest.

Nevertheless, the court below's decision that the disposition of this case which rejected the plaintiff's application for permission to change the form and quality is unlawful shall not be deemed to have committed an error of law that affected the conclusion of the remaining judgment by misunderstanding the facts against the rules of evidence and misunderstanding the legal principles on the restriction on permission to change the form and quality.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below shall be reversed, and the case shall be 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.

Justices Park Jong-chul (Presiding Justice)