[1] In a case where the cancellation of an illegal disposition is not possible to restore it to its original state, whether there is a benefit of lawsuit seeking such cancellation (negative)

[2] Whether the application of the provisions of the Mining Industry Act, which set the period of application for extension of the term of mining right, is excluded in the dispute over the cancellation of mining right (negative)

[3] In a case where an application for extension of the term of mining rights has been rejected while a lawsuit seeking revocation of mining rights has been pending and the term of existence has expired, whether the benefit of the lawsuit is recognized

[1] Since a lawsuit seeking the cancellation of an illegal administrative disposition is a lawsuit seeking the restoration to its original state by removing an illegal state caused by the illegal disposition, and the protection and remedy of the rights and interests infringed or interfered with the disposition, there is no benefit to seek the cancellation if it is impossible to restore it to its original state even if

[2] Under Article 14(2) of the Mining Industry Act and Article 3(2) of the Enforcement Decree of the same Act, a mining right holder may file an application for extension permission within three to six months prior to the expiration of the term of mining rights. If the period of application for extension of the term of mining rights under the same provision is in dispute over the cancellation of the term of mining rights in question, it shall not be deemed that the application for extension permission can be filed after the cancellation of the term of mining rights became final and conclusive.

[3] Where an application for extension of the term of a mining right in question was filed while a lawsuit seeking revocation of the cancellation of the mining right was filed but the term of a mining right has expired after the rejection, there is no benefit in legal action seeking revocation of the cancellation of the mining right because it is impossible to restore the term even if the cancellation of the mining right is revoked, and

[1] Article 12 of the Administrative Litigation Act / [2] Article 12 of the Administrative Litigation Act, Article 14 (2) of the Mining Industry Act, Article 3 (2) of the Enforcement Decree of the Mining Industry Act / [3] Article 12 of the Administrative Litigation Act, Article 14 (2) of the Mining Industry Act, Article 3 (2) of the Enforcement Decree of

[1] [2] Supreme Court Decision 85Nu32 delivered on May 28, 1985 (Gong1985, 948), Supreme Court Decision 93Nu20801 delivered on March 11, 1994 (Gong1994Sang, 1208), Supreme Court Decision 95Nu4568 delivered on July 11, 1995 (Gong195Ha, 2814)

New Uniforms (Attorney Han-chul et al., Counsel for defendant-appellant)

The head of the Mining Registration Office

Seoul High Court Decision 95Gu643 delivered on October 19, 1995

Of the judgment of the court below, the part on the claim for cancellation of the mining right cancellation disposition No. 12 and No. 9136 of the registration number of the court below is reversed, and this part of the lawsuit is dismissed. The remainder of the appeal by the plaintiff is dismissed. The

1. We examine the Plaintiff’s attorney’s ground of appeal as to the interest in the lawsuit.

A lawsuit seeking the cancellation of an illegal administrative disposition is to restore it to its original state by excluding the illegal state caused by the illegal disposition, and to protect and relieve the rights and interests infringed or interfered with the disposition, so even if the illegal disposition is cancelled, there is no benefit to seek the cancellation if it is impossible to restore it to the original state.

In addition, Article 14(2) of the Mining Industry Act and Article 3(2) of the Enforcement Decree of the same Act provide that a mining right holder may apply for an extension of the term of a mining right within three to six months prior to the expiration of the term of a mining right. If the period of application for extension of the term of a mining right under the above provision is one of the litigations in relation to the cancellation of the mining right, it shall not be deemed that the application for extension can be applied after the cancellation of the mining right becomes final and conclusive (see Supreme Court Decision 95Nu4568 delivered on July 11, 1995).

According to the court below's lawful determination, the term of the mining right No. 11, No. 50978 among each of the mining rights of this case is until October 31, 1994. The defendant revoked the above mining right on April 15, 1994 on the ground that the plaintiff discontinued his business for not less than one year without authorization. The above term of the mining right has already expired on or before September 28, 1995, which is the closing date of the court below's argument, and there was no other application for extension of the term of the mining right within the period stipulated in Article 3 (2) of the Enforcement Decree of the Mining Act. Thus, even if the above cancellation disposition on the above mining right is revoked, the plaintiff is impossible to restore it, and it cannot be said that there is no benefit to seek cancellation of the above mining right.

In the same purport, the decision of the court below that dismissed the plaintiff's claim for revocation of the above mining right is illegal for the reason that there is no interest in the lawsuit, is just, and there is no error in the misapprehension of legal principles as to the interest in the lawsuit like the theory of lawsuit. The argument is without merit

2. The records show that the term of the mining right No. 9136, No. 12, No. 9136, among each of the mining rights in this case, has expired until January 31, 1996, and the plaintiff filed an application for extension of the term of the mining right in this case, and the plaintiff returned it. Thus, even if the above cancellation of the mining right in this case is revoked, it is impossible for the plaintiff to restore it to its original state, so the plaintiff has no interest in the lawsuit seeking cancellation of the above mining right in this regard. Therefore, this part of the lawsuit is unlawful in the course of the final appeal, and thus, the reversal of the judgment of the court below

3. Therefore, the part of the judgment of the court below as to the claim for revocation of mining right No. 12, No. 9136, which affected the conclusion of the judgment, shall be reversed, and it shall be decided directly by the members. The remaining grounds of appeal by the plaintiff shall be dismissed, and the total costs of appeal shall be borne by the losing party. It is so decided as per Disposition by the assent

Justices Lee Yong-hun (Presiding Justice)