(영문) 서울고등법원 2019.11.22. 선고 2019누48020 판결

The judgment of the first instance shall be revoked. The defendant's rejection of the application for reduction of mining area on November 29, 2017 against the plaintiff shall be revoked on November 29, 2017.

Reasons

1. Quotation of the reasons for the judgment of the first instance;

The reasons to be stated in this judgment are as stated in the judgment of the court of first instance, in addition to the parts to be filled or added below and those to be determined additionally under paragraph (2) of this Article, so it shall be cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

No. 6 of the judgment of the first instance court, 10 and 11 used "each description or image of evidence No. 1 through 5 of the judgment of the first instance, each fact inquiry of the Korea Highway Corporation to the President of the Korea Highway Corporation of this court," as "each description of evidence No. 25, 26, Eul No. 1 through 5 of the judgment of the first instance court, and the result of each fact inquiry to the President of the Korea Highway Corporation of the first instance."

○ Part 7 of the 7th judgment of the first instance court "from the ground to the 5th level" shall be followed as follows.

[Around March 11, 201, the term of use of H, I total 2,178 meters from the Gyeongnam-do, for the purpose of mining development of mines, was approved from October 2010 to October 2013, but only engaged in mining on the ground without obtaining approval for mining of minerals (Article 8 (1) of the Mining Safety Act and Article 10 (1) 16 of the Enforcement Decree of the same Act) and did not extract minerals from the underground (On the other hand, the Plaintiff obtained permission for the purpose of mining development from Y on December 15, 2017, but the above permission was made after the application for a reduction of mining area with respect to the Defendant, so it does not affect the judgment as to whether mining in the mining area was detrimental to the public interest or the construction of the State, which is an important mining project).

○ The following shall be added to the nineth sentence of the first instance court on the 9th sentence."

Unlike Article 24 of the Mining Industry Act, Article 34 of the Mining Industry Act provides that "In addition, the damages shall be compensated for when the cancellation of the mining right or the reduction of the mining area already permitted due to the reasons for the public interest, and unlike cases where the mining right is denied due to the reasons for the public interest pursuant to Article 24 of the Mining Industry Act at the permission stage, Article 44 of the Mining Industry Act may restrict the extraction rights of the already permitted mining right holder within a certain distance from the road and the matters to be considered after the permission is not the same as those to be considered at the permission stage.

2. Additional determination

A. The plaintiff's assertion

Although the Defendant’s rejection of the Plaintiff’s application for a reduction of mining area should state the grounds for individual disposition on the basis of four mining areas, the Defendant does not distinguish them and clarify the grounds for individual disposition only abstractly, and in light of the overall process, it cannot clearly state the grounds for disposition in light of the overall process, and thus, is unlawful.

B. Determination

According to Gap evidence No. 13, the defendant's application for the reduction of mining area for the plaintiff's application is recognized as the fact that "the provisions of the reduction of mining rights and the cancellation disposition under Article 34 of the Mining Industry Act in relation to the application for the reduction of mining area applied by the plaintiff shall not be applied for the reduction of mining area at will by a mining right holder other than the public interest office (hereinafter referred to as "the disposition of this case") unless it is proved clearly that the mining area is likely to hinder the important national construction project or to impair public interest."

However, in light of the following circumstances, the evidence Nos. 7, 12, and 6’s overall purport of the pleading, namely, ① the Plaintiff filed a claim against the Defendant for damages against the Korea Highway Corporation prior to filing an application for reduction of a mining area, and the response that does not constitute a ground for reduction of a mining area. ② In the process of processing the Plaintiff’s civil petition against the Anti-Corruption and Civil Rights Commission, the Korea Expressway Corporation responded to the fact that the Korea Expressway Corporation did not directly interfere with mineral extraction activities in the instant motorway because the area of the instant motorway and mineral extraction section exceeds about 700 meters, and thus, the Korea Highway Corporation responded to the fact that the Korea Expressway Corporation did not directly interfere with mineral extraction activities in the instant motorway. The Anti-Corruption and Civil Rights Commission cannot be deemed to have caused substantial and realistic infringement on the Plaintiff’s petition on the ground that the restriction on the extraction of the instant motorway is possible. In light of the above, it cannot be deemed that the restriction on the extraction of the Plaintiff’s civil petition, the Plaintiff’s contents and relevant statutes stated in the instant disposition, and the overall process leading to the instant disposition.

3. Conclusion

The plaintiff's claim of this case is dismissed as it is without merit. The judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it is without merit.