The meaning of "road that has not been completed but is actually possible to pass" and the scope of "where a road management agency or road manager consents to the use of a road" under Article 20 (4) [Attachment Table 4] 1.e. (b) of the former Enforcement Decree of the Management of Mountainous Districts Act.

In full view of the contents, structure, legislative purport, etc. of Article 20(4) [Attachment Table 4] [Attachment Table 1.e. 10(b) of the former Enforcement Decree of the Mountainous Districts Management Act (amended by Presidential Decree No. 22513, Dec. 7, 2010), “road which has not been completed but is actually possible to pass” means a road where an administrative disposition on which a passage has yet to be completed, and where it is expected that a completion inspection according to the relevant administrative disposition will be completed due to a long-term passage, and it shall not be deemed that such administrative disposition does not exist from the beginning, or where a road management authority or road manager consents to road use, even if the applicant for permission for conversion did not obtain consent on road use, it shall also include cases where a road management authority or road manager is legally obligated to pass roads to change the form and quality of a forest on the surrounding land.

Article 20(4) [Attachment 4] [Attachment 4] [Attachment 6] [Attachment 4] [Attachment 4] of the former Enforcement Decree of the Mountainous Districts Management Act (Amended by Presidential Decree No. 22513, Dec. 7, 2010)

Plaintiff (Law Firm Barun, Attorneys Ha Jong-dae et al., Counsel for the plaintiff-appellant)

Yang-gu Gun (Law Firm Corporation, Attorneys Yellow-jin et al., Counsel for the plaintiff-appellant)

Intervenor joining the Defendant

Seoul High Court Decision 2011Nu15802 decided April 4, 2012

The appeal is dismissed. All costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

Article 20(4) and attached Table 4 subparag. 1(e)10(b) of the former Enforcement Decree of the Mountainous Districts Management Act (amended by Presidential Decree No. 22513, Dec. 7, 2010; hereinafter “former Enforcement Decree”) provide that “The standards for permission for the conversion of a mountainous district, which are commonly applicable when permission is granted, shall be a conversion of a mountainous district where a road management authority or a manager consents to road use, although inspection on completion has not been completed, and the actual passage has not been permitted.” In full view of the content, structure, legislative intent, etc. of these provisions, “road where inspection on completion has not been completed but it is actually possible to pass” means a case where an administrative disposition on a road where the actual passage of which is possible remains effective and a completion inspection on completion is expected to be completed in accordance with the immediate administrative disposition. Furthermore, it cannot be deemed that such administrative disposition is included even if a road management authority or a manager of a adjacent road gives consent to the use of a road.”

The lower court determined that the Defendant’s request to the Plaintiff for the submission of the written consent to the use of the instant forest owner in addition to the judgment on confirmation of the right to passage over surrounding land in the instant case was unlawful, but the Plaintiff, as the Plaintiff, was entitled to obtain permission for changing the form and quality of the forest by filing an application for a building report (consultation on conversion of mountainous district), along with the said judgment, including the instant forest in the applied area, but did not file an application for such permission. As such, the Defendant’s request to supplement the Plaintiff’s inclusion of the instant forest in the applied area was lawful, and the instant disposition was lawful

In light of the above legal principles, such determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors of misapprehending the legal principles as to the detailed criteria for permission of mountainous district conversion under subparagraph 1(e)(b) of attached Table 4 of the

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 Lee In-bok (Presiding Justice)