[1] Whether the provisions of the Civil Act concerning the calculation of period when calculating the period of limitation on application under Article 16 of the Mining Industry Act apply (affirmative)

[2] The case holding that in the case of Sundays on January 27, 2008, the last day after the six-month period from July 28, 2007, when the period of restriction on application for the establishment of mining rights started, the period of restriction on application expires on January 28, 2008, pursuant to Article 161 of the Civil Act

[1] Article 155 of the Civil Code provides that "the calculation of a period shall be governed by the provisions of this Chapter unless otherwise provided by the Acts and subordinate statutes, judicial disposition, or juristic act." Thus, the calculation of a period shall be governed by the provisions of the Civil Code unless otherwise provided by the relevant Acts and subordinate statutes, etc. In the meantime, Article 16 of the Mining Industry Act provides that "in the case of an area where a mining right has been terminated due to the termination of the term of mining right under Article 12 or a mining right has been cancelled pursuant to Article 35, no application for the establishment of a mining right for other minerals existing in the same mineral deposit as the registered mineral of the extinguished mining area shall be filed within six months after the extinguishment of the mining right shall not be filed." However, as the Mining Industry Act does not provide for the calculation of a period, the provisions of the Civil Code concerning the calculation of a period of restriction on application under

[2] The case holding that in the case of Sundays on January 27, 2008, the last day after the six-month period from July 28, 2007, when the period of restriction on application for the establishment of mining rights started, the period of restriction on application expires on January 28, 2008, pursuant to Article 161 of the Civil Act

[1] Article 16 of the Mining Industry Act, Article 155 of the Civil Act / [2] Article 16 of the Mining Industry Act, Articles 155 and 161 of the Civil Act

Plaintiff (Attorney Kim Hyun-soo, Counsel for the plaintiff-appellant)

The head of the mining registration office (Law Firm Seaw, Attorneys Lee Mine-min et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2008Nu37963 decided July 8, 2009

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

The grounds of appeal are examined.

1. In full view of the evidence of its employment, the court below acknowledged that the defendant revoked the mining right under the name of the non-party to the mining area of this case pursuant to Article 35 of the Mining Industry Act and completed the registration of extinguishment in the mining ledger on July 27, 2007, and that the plaintiff filed an application for the establishment of the mining area of this case against the defendant on January 28, 2008, but the defendant did not accept the application on January 29, 2008 on the ground that the above application for the establishment of the mining area was filed within the period of six months under Article 16 of the Mining Industry Act. Since the mining right under the non-party's name was extinguished in the mining ledger on July 27, 2007, the period of restriction on application under Article 16 of the Mining Industry Act for the mining area of this case from July 28, 207 to January 27, 2008, the court below determined that the plaintiff's application for the establishment of the mining right was lawful.

2. However, we cannot agree with the above judgment of the court below for the following reasons.

Article 155 of the Civil Act provides that "the calculation of a period shall be governed by the provisions of this Chapter unless otherwise provided by the Acts and subordinate statutes, judicial disposition, or juristic act." Thus, in the calculation of a period, unless otherwise provided by the relevant Acts and subordinate statutes, the provisions of the Civil Act shall apply. Meanwhile, Article 16 of the Mining Industry Act provides that "in the case of an area where a mining right has been extinguished due to the termination of the term of mining rights under Article 12 or a mining right has been cancelled under Article 35, no application for the establishment of a mining right for other minerals existing in the same mineral deposit as the registered mineral of the extinguished mining area shall be filed within six months after the extinguishment of the mining right shall not be filed." However, as the Mining Industry Act does not provide for the calculation of a period, the provisions of the Civil Act concerning the calculation of a period shall be applied as it is in calculating the period of restriction on

According to the reasoning of the judgment below and the record, the period of restriction on application for the mining area of this case shall be the first day of July 28, 2007, which was the first day of the period of restriction on application for the establishment of mining rights for the mining area of this case, and on January 27, 2008, which was the last day of the period of six months from July 28, 2007, and Article 161 of the Civil Act provides that "if the last day of the period falls on Saturdays or a national holiday, the period shall expire on the following day." Thus, in light of the above legal principles, the period of restriction on application for the mining area of this case shall be deemed to expire on January 28, 2008, which is the next day of January 27, 2008 pursuant to Article 161 of the Civil Act. Accordingly, the plaintiff's application for the establishment of mining rights which was filed on January 28, 2008, shall be deemed to be unlawful.

Nevertheless, on the grounds stated in its reasoning, the lower court determined that the period of restriction on application to the mining area of this case was expired on January 27, 2008, on the premise that Article 161 of the Civil Act does not apply to the calculation of the period of restriction on application under Article 16 of the Mining Industry Act, and therefore, the lower court erred by misapprehending the legal doctrine on the calculation of the period of restriction on application under Article 16 of the Mining Industry Act, which affected the judgment.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)