Plaintiff 1 and two others (Attorney Han-sik, Counsel for the plaintiff-appellant)

Magyeong-gun

October 15, 2008

1. The application for approval of recovery design filed by the defendant against the plaintiffs on June 7, 2007 is revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On June 23, 2005, the Plaintiffs obtained permission for the conversion of mountainous districts from the Defendant (hereinafter “instant permission for the conversion of mountainous districts”).

Plaintiff 1,402 m22 m2 from June 23, 2005 to April 30, 2006, Plaintiff 2, on June 23, 2005, creating a warehouse site of Plaintiff 2,322 m2 m2 m2 in each document in the period exclusively used for the purpose of conversion of the permitted area for the place of mountainous district of a person permitted to convert a mountainous district included in the main text, and 1,218 m21,218 m2 from June 23, 2005 to May 30, 2006, for the construction of a warehouse site of Plaintiff 3, the same m218 m21,218 m2.

B. As the Plaintiffs failed to complete the construction of warehouse site within the above period, around May 2006, the Plaintiffs applied for permission to extend the period of conversion, seeking to extend the period of conversion by May 30, 2007, with the purpose of conversion as “establishment of warehouse site” as it is, and to extend the period of conversion.

C. Accordingly, on June 28, 2006, the Defendant granted to the Plaintiffs permission to extend the period pursuant to Article 17(2) of the Mountainous Districts Management Act (hereinafter “Act”) and Article 19(2) of the Enforcement Decree of the Act by providing that the purpose of conversion of a mountainous district shall be “ware creation” unlike the initial permission or the Plaintiffs’ application details (hereinafter “instant permission to extend the period”).

D. On May 30, 2007, the Plaintiffs filed an application for the approval of restoration design (hereinafter “instant application”) pursuant to Article 40(1) of the Act after completing the construction of warehouse site for each of the above subject areas. However, if the Defendant wishes to obtain the approval of restoration design on June 7, 2007, the purpose of mountainous district conversion should be completed, but in the case of the above subject area, the Defendant did not approve the said application on the ground that the purpose of mountainous district conversion was not completed (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1 through 3, 5, 6, 7 evidence 1, 2, 8-1 through 3, and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiffs' assertion

The purpose of the instant permission for mountainous district conversion is not the construction of warehouse sites, but the construction of warehouse sites was completed. Thus, the instant disposition that rejected the instant application on the ground that the purpose of the instant permission for mountainous district conversion was not completed, was unlawful.

B. Defendant’s assertion

In light of the fact that the purpose of permission for mountainous district conversion is a building building at the time of the permission for mountainous district conversion, and that the permission may be revoked if not performed, and that the purpose of permission for mountainous district conversion is specified in the permission for mountainous district conversion, the purpose of permission for mountainous district conversion of this case is not a mere creation of warehouse site, but a construction of warehouse building. Thus, the plaintiffs only created warehouse site, and the application of this case was not approved without construction of warehouse building.

3. Related statutes;

Mountainous Districts Management Act

Article 2 (Definitions)

The definitions of terms used in this Act shall be as follows:

2. The term "conversion of mountainous district" means afforestation, forestation, extraction and gathering of earth and rocks, and other use for purposes other than those for producing forest products prescribed by Presidential Decree, or changing the form and quality of a mountainous district for such use;

Article 14 (Permission for Conversion of Mountainous Districts)

(1) A person who intends to convert a mountainous district shall obtain permission from the Minister of the Korea Forest Service for a specified purpose as prescribed by Presidential Decree, and the same shall also apply where he/she intends to modify permitted matters.

Article 17 (Period for Permission for Conversion of Mountainous Districts)

(2) Where a person who has obtained permission for mountainous district conversion under Article 14 or reported mountainous district conversion under Article 15 fails to complete a project for which he/she intends to divert within the period of mountainous district conversion under paragraph (1) and it is necessary to extend such period, he/she shall obtain permission for extension of the period of mountainous district conversion from the Minister of the Korea Forest Service or report alteration of the period

Article 37 (Prevention, etc. of Disasters)

(1) The Minister of the Korea Forest Service may order a person who has obtained permission, etc. or filed a report, etc. falling under any of the following subparagraphs to temporarily suspend the conversion of a mountainous district, the extraction and gathering of earth and rocks, or to take measures necessary for the prevention of or recovery from disasters, such as the installation of facilities, afforestation and erosion control, etc., as prescribed by Presidential Decree, if deemed necessary for preventing landslides, soil and rocks, or damage to neighboring areas:

1. Permission for mountainous district conversion under Article 14;

Article 39 (Restoration of Mountainous Districts, etc.)

(1) A person who obtains permission, etc. or files a report, etc. falling under any subparagraph of Article 37 (1) shall restore a mountainous district to a mountainous district when the purpose of a mountainous district conversion, the extraction or collection of soil and rocks, or the period of a mountainous district conversion expires by obtaining such permission, etc. or filing such report,

Article 40 (Approval, etc. of Design Plans for Restoration)

(1) A person who intends to restore a mountainous district pursuant to Article 39 (1) and (2) shall submit a plan for restoration of a mountainous district (hereinafter referred to as "development plan") which includes a period, etc. for restoration of a mountainous district and obtain approval therefor from the Minister of the Korea Forest Service within a period prescribed by Presidential Decree. The same shall apply where he

Enforcement Decree of Mountainous Districts Management Act

Article 19 (Permission, etc. for Extension of Period of Mountainous Districts)

(1) Any person who intends to obtain permission to extend a period of mountainous district conversion or file a report on change pursuant to Article 17 (2) of the Act shall submit an application for permission to extend a period of mountainous district conversion or a report on change of mountainous district to the Minister of the Korea Forest Service by ten

4. Determination

According to the relevant provisions such as Article 39(1) and Article 40(1) of the Mountainous Districts Management Act, when a person subject to a disposition such as permission for conversion of a mountainous district completes the purpose of conversion of a mountainous district conducted with the relevant permission or the period of conversion of a mountainous district expires, he/she may submit a plan for restoration of a mountainous district to the competent administrative agency

In addition, permission for mountainous district conversion is permitted to allow an applicant for permission to use mountainous district for purposes other than afforestation, forestation, etc. or to change the form and quality of mountainous district for such purpose. Since such permission is merely an extension of the period of permission, the competent administrative agency may not grant permission for extension of the period, upon application by a party to the permission, by arbitrarily changing the purpose of mountainous district conversion to the original purpose of mountainous district conversion without any means such as supplementing the purpose of mountainous district

However, the plaintiffs filed an application for permission to convert the mountainous district for the purpose of the conversion of this case as the creation of warehouse site and obtained such permission, and even in applying for permission to extend the period, the defendant specified the purpose of the permission to extend the period as the creation of warehouse site, but the purpose of the permission was arbitrarily changed to the construction of warehouse not the construction of warehouse site. Thus, the purpose of the permission to convert the mountainous district of this case cannot be deemed to have been changed to the construction of warehouse, not

In addition, it cannot be deemed that the Plaintiff filed an application for the purpose of conversion of a mountainous district and filed an application for the purpose of conversion of a warehouse construction rather than warehouse construction stated for the purpose of conversion of a mountainous district, on the ground that the purpose of the conversion of a mountainous district is a building and if the permission is not implemented, it may be revoked.

Therefore, the disposition of this case which did not approve the application of this case on the ground that the purpose of the conversion of this case was the creation of warehouse site, and that the purpose of the conversion of this case was not completed, shall be deemed to be unlawful (In addition, since the application of this case was made after the period of conversion of this case expired and its purpose was not completed, the application of this case cannot be approved on the ground that it was not completed).

5. Conclusion

Therefore, the plaintiffs' claim of this case seeking the cancellation of the disposition of this case is justified and it is so decided as per Disposition by the assent of all participating Justices.

Judges Ha Jong-dae (Presiding Judge) Dominon Dominon