In cases where it is impossible to recover the original state even after the cancellation of the illegal disposition, whether there is a benefit to seek the cancellation

If the duration of a mining right expires among disputes against the cancellation of mining rights, whether there is a benefit of lawsuit

(a)a lawsuit seeking the cancellation of an unlawful administrative disposition is a lawsuit seeking the restoration to its original state by excluding an unlawful state arising from such an unlawful disposition and protecting the rights and interests infringed or interfered with such disposition, and therefore there is no benefit to seek the cancellation, even if the unlawful disposition is cancelled, if it is impossible to recover it;

B. If there is a dispute as to whether to cancel a mining right cancellation disposition and the period of existence expires during the litigation, pursuant to Article 3(2) of the Enforcement Decree of the Mining Industry Act based on Article 14(2) of the same Act, an application for a permit to extend the term of mining right shall be filed within three to six months before the expiration of the term. If there is a dispute between the parties, there is no ground to exclude the application of the above provision, and it cannot be viewed as different because the application for a permit to extend the term is predicted that the administrative agency should not accept the application even if there is an application for

(b)Article 12 of the Administrative Litigation Act and Article 14(2) of the Mining Industry Act. Article 3(2) of the Enforcement Decree of the Mining Industry Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jae-soo and 1 other, Counsel for plaintiff-appellant)

[Judgment of the court below]

The head of the Ministry of Trade, Industry and Energy

Seoul High Court Decision 93Gu21158 delivered on February 7, 1995

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

A lawsuit seeking the cancellation of an illegal administrative disposition is a lawsuit seeking the restoration to its original state by excluding the state of illegality caused by the illegal disposition, and protecting the rights and interests infringed or interfered with the disposition. Thus, even if the illegal disposition is cancelled, there is no benefit to seek the cancellation if the restoration is impossible.

However, according to the court below's lawful determination, the plaintiff has the term of existence of each mining right as of May 31, 1994 and December 31, 1993. The defendant issued the disposition of this case on December 1, 1992, which cancelled each of the above mining rights on the ground that the plaintiff did not have any mineral production record or did not submit a mineral production report within three years from the date when the mining plan was approved. The term of each of the above mining rights has already expired as of the date when the argument of the court below was concluded. Thus, even if the disposition of this case is revoked, it shall be deemed that there is no benefit to seek cancellation.

The issue is that as long as the mining right is cancelled due to the disposition of this case, once the mining right is extinguished due to the process or binding force of the administrative disposition, it is logical impossible to permit the extension of the term of the mining right which has already been extinguished, and even if the plaintiff applied for the extension of the term of the mining right, it is obvious that the plaintiff did not accept it as inquiry by the Minister of Trade, Industry and Energy, or as the defendant is the person who is the applicant and the defendant, so it is reasonable and objective interpretation to regard the extension of the term of the mining right after the lawsuit becomes final and conclusive, and it is reasonable to regard the extension of the term of the mining right after the lawsuit becomes final and conclusive, and if it conforms to the concrete validity, it is reasonable to consider that the interest in the lawsuit is not extinguished. However, according to Article 3 (2) of the Enforcement Decree of the Mining Industry Act based on Article 14 (2) of the same Act, the application for the extension of the term of the mining right should be excluded within three months or more before the expiration of the term of the mining right, and there is no ground for the application of the above provision (see Supreme Court Decision 200Mo139.138.139.1.

Therefore, the decision of the court below that dismissed the plaintiff's lawsuit of this case without interest in the lawsuit is just, and there is no error in the misapprehension of legal principles as to the interest in the lawsuit in the administrative litigation such as the theory of lawsuit, the misapprehension of legal principles as to the validity of administrative disposition, or the rules of evidence.

There is no reason to discuss this issue.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-soo (Presiding Justice)