Whether a mining right holder violates the Aggregate Extraction Act in a case where a mining right holder extracts aggregate without permission to extract aggregate within a mining right establishment area (affirmative)

Even if ordinary dust and sand are similar in appearance, stimulants containing more than 90% of ordinary dust under the Mining Industry Act are minerals under the Aggregate Extraction Act and general sand that do not so are clearly divided into aggregate under the Aggregate Extraction Act. Article 5(1) of the Mining Industry Act provides that "the right to mine and acquire minerals registered in a specific mining area where mining right is registered and other minerals buried in the same mineral deposit shall not be defined as the right to extract aggregate within a specific mining area where the right to extract the aggregate is registered. In addition, since the Mining Industry Act does not have any restriction on disposal of minerals mined by the mining right holder, it is obvious that the mining right holder can extract minerals and dispose of aggregate at the price of the aggregate. However, if the defendant did not obtain permission to extract aggregate without permission, the person who intends to extract aggregate shall obtain permission to extract aggregate from the head of the competent Si/Gun/Gu, regardless of the permission to extract aggregate under the provisions of Article 22(1) of the Aggregate Extraction Act, the above provision does not apply to a mining right holder who does not obtain aggregate extraction.

Articles 22(1), 25, and 49 of the Aggregate Extraction Act, Article 5(1) of the Mining Industry Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Defendant

Prosecutor

Attorney Park Jong-young

Gwangju High Court Decision 96No616 delivered on February 11, 1998

The part of the judgment below regarding the violation of the Aggregate Extraction Act is reversed, and that part of the case is remanded to the Gwangju High Court. The prosecutor's remaining appeal is dismissed.

1. Judgment on violation of the Aggravated Punishment Act

The prosecutor did not submit an appellate brief on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, and the appeal on this part is without merit.

2. Judgment on the violation of the Aggregate Extraction Act

A. Summary of the judgment below

According to the reasoning of the judgment below, as to the facts charged that the defendant extracted sand from the aggregate without obtaining permission to extract aggregate from the sea in front of the front of the area located in the new area located in the new area located in the new area where the mining right is established, the court below judged that the above defendant was not guilty of the facts charged on the ground that although ordinarys and aggregate are not different in appearance, ordinarys and the standards for registration are more than 90% of ordinarys, and Article 5 (1) of the Mining Industry Act provides that the registered minerals and other minerals buried in the same mineral deposits as those registered within the registered mining area is the right to mine and acquire the same, and there is no provision that restricts the mining right holder's disposal of the mined minerals under the Mining Industry Act. Thus, the defendant, who is a mining right holder, can mine the marine sand extracted within his mining area regardless of whether it is actually used for any purpose or not, and thus, he can not be held liable for the above violation of the Aggregate Extraction Act.

B. Determination

However, even if ordinary dust and sand are similar in appearance, it is clear that 90% or more of ordinary dusts are minerals under the Mining Industry Act and general sand that do not so are clearly divided into aggregate under the Aggregate Extraction Act. Article 5(1) of the Mining Industry Act provides that "the right to mine and acquire registered minerals and other minerals buried in the same mineral deposit shall be the right to extract aggregate within a certain mining area, the registered mining area, the mining right of which has been registered, and does not stipulate it as the right to extract aggregate. In addition, since the Mining Industry Act does not have any restriction on disposal of minerals extracted by the mining right holder, it is obvious that the mining right holder does not conflict with the law by extracting minerals and disposing of them into the aggregate price, but it does not mean that the mining right holder can extract and sell aggregate, not minerals, without permission.

However, Article 22 (1) of the Aggregate Extraction Act provides that a person who intends to extract aggregate shall obtain permission from the head of the competent Si/Gun/Gu under the conditions as prescribed by Presidential Decree, and the same shall not apply to cases where aggregate is incidentally extracted in accordance with a project implemented by other Acts and subordinate statutes. Thus, it is reasonable to interpret that a mining right holder should obtain permission to extract aggregate in cases where aggregate is excavated due to the discovery of a luminous beer or where aggregate is extracted incidentally in the course of extracting minerals, but permission to extract aggregate is not required if aggregate is extracted regardless of mineral extraction.

Therefore, if the defendant extracted incidental sand in the course of extracting ordinary sand or sold ordinary sand as sand, it would not be necessary to obtain permission under the Aggregate Extraction Act for the extraction of sand or sed sand. However, if the defendant extracts aggregate regardless of ordinary extractions and did not obtain permission under the Aggregate Extraction Act, it constitutes a crime of violation of the Aggregate Extraction Act.

Nevertheless, the court below erred in the misapprehension of legal principles as to the interpretation of the Aggregate Extraction Act and incomplete deliberation in finding the defendant not guilty of the above facts charged without examining whether the defendant extracted aggregate from the extraction of minerals, whether the defendant sold aggregate from the extraction of minerals, or whether the aggregate has been extracted from the extraction of minerals under the premise that the mining right holder can extract aggregate without the permission of extraction of aggregate within the mining area. The grounds for appeal on this point are with merit.

3. Therefore, the part of the judgment of the court below regarding the violation of the Aggregate Extraction Act shall be reversed and remanded to the court below. The prosecutor's remaining appeal shall be dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Song Jin-hun (Presiding Justice)