[1] In a case where a mining right holder suffered a loss due to the restriction on mining under Article 48(1) of the former Mining Industry Act, whether compensation can be claimed (negative), and whether the above legal principle applies to a case where a facility or a building is installed after the establishment of a mining right or commencement of a mining (affirmative)

[2] The owner of a mineral separated from the mining restriction zone under Article 48 (1) of the former Mining Industry Act (=mining right holder)

[1] Article 48 (1) (see current Article 44 (1)) of the former Mining Industry Act (wholly amended by Act No. 8355 of Apr. 11, 2007) / [2] Article 8 (1) (see current Article 5 (1)) and Article 48 (1) (see current Article 44 (1)) of the former Mining Industry Act (wholly amended by Act No. 8355 of Apr. 11, 2007)

[1] Supreme Court Decision 2005Da10876 Decided June 10, 2005, Supreme Court Decision 2010Da108197 Decided March 27, 2014

[Defendant-Appellant] Plaintiff (Law Firm LLC, Attorney Choi Hyeong-chul, Counsel for defendant-appellant)

Republic of Korea (Law Firm Jinjin, Attorneys Song Hun-hwan et al., Counsel for the defendant-appellant)

Seoul High Court Decision (Chuncheon) 2011Na2147 decided July 18, 2012

The part of the lower judgment against the Plaintiff pertaining to the claim for damages arising from the Defendant’s tin extraction is reversed, and that part of the case is remanded to the Seoul High Court. The remaining appeals are dismissed.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. Article 48(1) of the former Mining Industry Act (wholly amended by Act No. 8355, Apr. 11, 2007; hereinafter the same) provides that "a mining right holder shall not mine minerals without permission from the competent authority or permission from the owner or interested party of a building or a religious facility or a cemetery, or permission from the interested party of a building within 50 meters above the ground surface of a railroad, track, road, water system, canal, river, possession, irrigation, irrigation, drainage, plant, grave, temple, temple, temple, or any other public structure, or within 30 meters above the ground surface of a cemetery or a building." The above provision provides that "in order to prevent the occurrence of an event impeding the management and operation of a religious facility or a building or a cemetery, etc. in the course of conducting mining operations, it is merely necessary to obtain permission from the competent authority or consent from interested parties, and such restriction shall not be deemed to have been granted to the minimum extent that the mining rights holder suffers losses due to the establishment of a mining right."

B. The court below rejected the plaintiff's claim by asserting that the plaintiff, a mining right holder, could not mine tin without the defendant's permission within 50 meters above the ground surface of the road established by the construction of this case, and the defendant's obligation to compensate the plaintiff for losses without the reduction of a mining area. Thus, the plaintiff's claim by asserting that the restriction of mining rights under Article 48 (1) of the former Mining Industry Act is a tort, and it cannot be said that the restriction of mining rights under Article 48 (1) of the former Mining Industry Act is a minimum restriction of mining rights as a matter of course for public welfare, and it cannot be said that the mining right holder has forced any special sacrifice, because the plaintiff suffered losses due to the restriction of mining rights under Article 48 (1) of the former Mining Industry Act, and it cannot be viewed that the defendant's execution of the construction of this case without compensation due to the above restriction does not constitute tort, and that the Minister of Commerce, Industry and Energy does not have an obligation to compensate for losses arising from the reduction of mining rights or construction of the mining area concerned.

C. Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal principles on the interpretation of Articles 48(1), 39(2) and (3) of the former Mining Industry Act

2. Regarding ground of appeal No. 2

The lower court determined that it is difficult to view that there exists a proximate causal relation with the blocking of the access road of this case, on the ground that the Plaintiff’s claim for damages equivalent to the loss of mining rights, asserting that the Plaintiff could no longer extract tin in the said mining area, on the wind to block the access road of this case which the Defendant is leading to the Plaintiff’s mining area while performing the instant construction project, and that there was no evidence to acknowledge that the Plaintiff had permanently lost mining rights due to the blocking of the access

In light of the relevant legal principles and records, such determination by the court below is just, and contrary to what is alleged in the grounds of appeal, there were no errors of exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or

3. As to the third ground for appeal

A. The court below reasoned that the Defendant infringed the Plaintiff’s ownership of the above tin in the mining area of this case by extracting tin in the course of the construction of this case, and sought compensation for damages from the above unlawful acts. The Defendant acknowledged that tin was extracted from part of the mining area of this case from June 2002 to September 2002 in the mining area of this case, but there is no evidence to prove that tin was included in large quantities of tin as alleged by the Plaintiff, even if tin was included in the above tin, it is incidental and inevitable as a result of the incidental and inevitable extraction of part of the mining area of this case while the construction of this case was lawfully implemented, and the Defendant, etc. without any evidence to support that tin had been used in the construction site of this case, it cannot be viewed as unlawful since tin was not subject to the Defendant’s permission to extract tin from June 200 to September 202, and it cannot be viewed that tin was not included in the mining area of this case’s ground surface and its expansion.

B. However, it is difficult to accept such determination by the lower court for the following reasons.

1) According to the reasoning of the judgment below and the records, the court below determined that the court below did not adopt the result of the first instance court’s entrustment and supplementation of the appraisal of the Korea Development Institute of Reconstruction and Technology supporting the fact that the above earth and sand included a large quantity of tin in the above earth and sand without any special reasons, and there is no evidence to acknowledge the above facts. However, according to the result of the first instance court’s entrustment and supplementation of appraisal of the Korea Development Institute of Reconstruction and Technology, it is reasonable to view that the defendant, while performing the instant construction, extracted from the part of the mining area of this case 617,493 cubic meters of earth and sand, 337,05.36 cubic meters from the 617,09,000 cubic meters of the above earth and sand were extracted from the area of tin burial, 80,000 M/T, and that the appraisal of 163,200,200,000,000 per annum or 20,000,0.

2) Article 8(1) of the former Mining Industry Act provides that minerals separated from land within a mining area without a mining right or a mining concession right shall be owned by the mining right holder or the mining concession holder. Therefore, in the course of performing the instant construction, tins separated from land within the Plaintiff’s mining area shall be deemed to be owned by the Plaintiff, the mining right holder, who is the mining right holder. In addition, Article 48(1) of the former Mining Industry Act limits the mining right holder’s mining within a certain scope, but unless there is any other provision denying the mining right holder’s ownership of minerals separated from the area included in the mining restriction scope, a mining right holder shall be deemed to have ownership pursuant to Article 8(1) of the former Mining Industry Act.

3) In light of the above legal principles and records, if the Defendant extracted a large quantity of the above earth and sand containing a large quantity of tin in the mining area of this case, and used or destroyed it for other purposes without giving the Plaintiff an opportunity to recover tin, there is sufficient room to deem that the Defendant committed at least by negligence a tort infringing the Plaintiff’s ownership of tin.

4) Nevertheless, the lower court did not examine whether the Defendant infringed the Plaintiff’s right of tin, and whether the Defendant intentionally or negligently committed an act of infringement of the Plaintiff’s ownership, and on the grounds indicated in its reasoning, rejected the Plaintiff’s assertion that the Defendant committed a tort of infringing the Plaintiff’s ownership by extracting tin, which is the Plaintiff’s owner during the instant construction work. In determining evidence, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, and by misapprehending the legal doctrine on mineral ownership under Article 8 of the former Mining Industry Act, thereby affecting the conclusion of the judgment.

4. Conclusion

Therefore, among the part of the judgment below against the plaintiff, the part concerning the claim for damages due to the defendant's tin extraction is reversed, and that part of the case is remanded to the court below for a new trial and determination. The remaining appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices

Justices Lee In-bok (Presiding Justice)