In cases where a forest is permitted to change its form and quality under Article 90 (1) of the former Forestry Act, but the Management of Mountainous Districts Act is implemented before the change period expires, and the change period has expired thereafter, whether a mountainous district may be restored before the completion of the intended project (affirmative)

Article 90(1) of the former Forestry Act (amended by Act No. 6841 of Dec. 30, 2002); Article 39(1) of the former Mountainous Districts Management Act (amended by Act No. 8283 of Jan. 26, 2007)

Plaintiff (Law Firm Taedong, Attorneys Kim Yong-ok, Counsel for the plaintiff-appellant)

Enforcement Decree of the Incheon Metropolitan City Guns (Attorney Han-soo, Counsel for defendant-appellant)

Seoul High Court Decision 2005Nu1543 delivered on November 22, 2005

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 2

Article 91(1) of the former Forestry Act (amended by Act No. 6841 of Dec. 30, 2002 and enforced Oct. 1, 2003; hereinafter the same shall apply) provides that the head of a Si/Gun or the head of the regional forest management office (hereinafter referred to as the “head of a Si, etc.”) shall deposit restoration expenses in advance when he/she intends to permit the alteration of the form and quality of a forest under Article 90(1) or receives a report. Article 91(3) of the same Act provides that a person who has deposited restoration expenses in a forest under paragraph (1) shall restore a forest whose form and quality have been altered within the period determined by the Mayor, etc.; Article 98-3(1) of the former Enforcement Rule of the Forestry Act (amended by Act No. 1450 of Oct. 22, 2003; hereinafter the same shall apply) provides that the head of a Si, Gun or the head of the regional forest management office (hereinafter referred to as the “Mayor, etc.”).

According to the above provisions, a person who obtained permission to change the form and quality of a forest under Article 90 (1) of the former Forestry Act but obtained permission to change the form and quality of a forest prior to the expiration of the change period, and obtained permission to change the form and quality of a mountainous district under Article 14 of the Management of Mountainous Districts Act may submit a plan for restoration to the competent authority and obtain approval as prescribed by the Management of Mountainous Districts Act and related Acts and subordinate statutes when the purpose of a mountainous district conversion is completed or the period of a mountainous district conversion expires.

According to the facts duly admitted by the court below in this case, the plaintiff deposited restoration expenses under Articles 90 (1) and 91 (1) of the former Forestry Act and obtained permission for changing the form and quality of a forest for the land in this case. The alteration of the form and quality of the land in this case expired after the implementation of the Mountainous Districts Management Act, and around that time, the plaintiff applied for approval for the restoration design of the land in this case and completed restoration after obtaining approval from the defendant, and the defendant applied for completion inspection after completion of restoration, but the defendant rejected the application on the ground that the above alteration of form and quality was not completed. As seen above, according to Article 39 (1) of the Mountainous Districts Management Act, if the period of mountainous district conversion expires under the above provision of Article 39 (1) of the Mountainous Districts Management Act, the defendant's disposition in this case on the ground that the alteration of form

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the duty to restore mountainous districts under Article 39 (1) of the Mountainous Districts Management Act. The ground of appeal on this part is without merit.

2. As to the third ground for appeal

According to the records, the ground of appeal that the disposition of this case is lawful since the plaintiff did not perform all restoration duties by performing only a part of the area permitted to change the form and quality of a forest as part of the area permitted for restoration of a forest, is obviously a claim that the defendant was granted only when it reaches the final appeal, and therefore, it cannot be a legitimate ground of appeal against the judgment below.

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

Justices Yang Sung-tae (Presiding Justice)