When a person who has excavated or excavated a mining area in South Korea receives a claim for damages from a mining right holder, a claim for expenses incurred in the course of digging or digging to the mining right holder and Article 8 (1) of the Mining Industry Act

In a case where a person without mining rights has excavated or excavated a mining area south, the fact that there is the provision of paragraph (1) of this Article that ownership of minerals separated from the land at that time belongs to the mining operator, and that there is no claim against the mining right holder for expenses for the extraction or duplicating (expenses for picking minerals).

Articles 7 and 8 of the Mining Industry Act, Articles 741, 750, and 763 of the Civil Act

Korea Coal Corporation

Matantane ore

Seoul High Court Decision 62Na1207 decided May 23, 1963

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

In light of Article 7 of the Mining Industry Act of the Republic of Korea, the plaintiff's agent's ground of appeal is that the unexploited minerals cannot be mined without the recognition of mining rights, and according to Article 8 of the same Act, the minerals separated from the land within the mining area should be owned by the mining right holder. The purport of the ground of appeal is that in order to prevent the unexploiting of the unexploited minerals from the mining area, the unexploited minerals should not be subjected to unjust enrichment from the mining operator. However, even though the court below recognized the fact that the plaintiff's unexploiting of the unexploited minerals, the court below determined that the plaintiff's expenses unexploited by the plaintiff's agent could not be included in the scope of the claim for damages. If so, it would result in the promotion of criminal acts such as digging or dive digging by the non-exploiting person, and that result would result in delivery of benefits due to the illegal cause.

However, in a case where a person without a mining right has excavated or excavated another mining area, it is not thought that there is a provision of Article 8(1) of the Mining Industry Act that the ownership of minerals separated from the land belongs to the mining right holder at that time, and thus, the mining right holder cannot claim the rare costs (cost for digging up minerals) for the course of digging out or digging out, because the mining right holder himself/herself should have taken care of the contribution of production cost for digging out the minerals. In this sense, as in this case, if the mining right holder is unable to return the minerals broken out in another mining area as in this case, so that the mining right holder can not enter the scope of calculating the amount of compensation for damages requested by the mining right holder. Therefore, as determined by the court below, the appeal by the defendant cannot be seen as an unlawful ground for appeal or appeal by the defendant which did not return the minerals to the plaintiff who is the mining right holder, within the scope of damages for digging out or its independent ground for appeal shall not be dismissed.

It is so decided as per Disposition by the assent of all participating judges.

Justices of the Supreme Court (Presiding Judge) Dog-Jak (Presiding Judge) Dog-Jak, Red Mag-Jak, Live-Jak, Live-P