[1] Whether the proviso of Article 5(1) of the Mining Industry Act, amended by Act No. 9882, Jan. 27, 2010, applies to the minerals, which were separated before the enforcement of the Mining Industry Act, and which had already been owned by the mining right holder, etc. under the former Mining Industry Act (negative)

[2] In a case where the Defendant was indicted on charges of damaging Byung's mineral products by reclaiming the minerals exposed to or extracted from the mining area registered in the name of the victim Byung while working as the site manager of the golf course construction work for which Gap corporation had been permitted by Eul corporation as a landowner Eul corporation, the case holding that the court below erred in the misapprehension of legal principles as to Article 5 (1) of the Mining Industry Act or Article 1 (2) of the Criminal Act, which affirmed the judgment of the court of first instance which acquitted the Defendant

[1] Even if Article 4(1) of the Addenda of the Mining Industry Act (amended by Act No. 9882, Jan. 27, 2011; hereinafter “amended Mining Act”) provides that the proviso of Article 5(1) of the amended Mining Industry Act shall also apply to mining rights that had been partially carried out prior to the enforcement of the Act, insofar as the amended Mining Industry Act does not explicitly provide for the ownership of the minerals whose separation has already been completed before the enforcement of the Act, the proviso of Article 5(1) of the amended Mining Industry Act applies only to the ownership of the minerals that have already been separated only after the enforcement of the amended Mining Act, and it cannot be deemed that the proviso of Article 5(1) of the amended Mining Industry Act applies to the ownership of the existing mining right holder, etc. who had already been transferred to the mining right holder, etc. under the former Mining Industry Act (amended by Act No. 9882, Jan. 27, 2010).

[2] In a case where the Defendant was indicted for damaging Byung company’s minerals by reclaiming minerals exposed to or extracted from a mining area registered in the name of the victim Byung as a site manager of the golf course construction work which had been conducted by Gap corporation as a landowner Eul corporation, the case holding that the lower court’s judgment that deemed that the lower court erred by misapprehending the legal principles as to the above facts charged, which did not constitute a violation of Article 5(1) proviso of the Mining Industry Act, or by misapprehending the legal principles as to the removal of mineral rights under Article 15(1) proviso of the former Mining Industry Act (amended by Act No. 9882, Jan. 27, 2010; hereinafter “amended Mining Industry Act”) and thus did not constitute an unlawful act of causing damage to Byung company’s mineral rights holders due to the repeal of the former Mining Industry Act’s Article 4(1) proviso to Article 5(1) of the same Act (amended by Act No. 982, Jan. 27, 2010).

[1] Article 5(1) of the former Mining Industry Act (Amended by Act No. 9882, Jan. 27, 2010); Article 5(1) of the Mining Industry Act; Article 4(1) of the Addenda (Amended by Act No. 9882, Jan. 27, 2010); Article 1(2) and Article 366 of the Criminal Act; Article 5(1) of the former Mining Industry Act (Amended by Act No. 9882, Jan. 27, 2010); Article 5(1) of the Mining Industry Act; Article 4(1) of the Addenda (Amended by Act No. 9882, Jan. 27, 2010); Article 326 subparag. 4 of the Criminal Procedure Act

Defendant

Prosecutor

Daejeon District Court Decision 2012No1467 Decided October 18, 2012

The judgment of the court below is reversed, and the case is remanded to Daejeon District Court Panel Division.

The grounds of appeal are examined.

1. The summary of the facts charged in the instant case is that “The defendant was working as the site manager of the golf course construction work for which the non-indicted 1 corporation (hereinafter “non-indicted 1 corporation”) had been ordered from the non-indicted 2 corporation (hereinafter “non-indicted 2 corporation”) and was inside the golf course from June 2008 to October 2010, but was damaged by reclaiming tin minerals extracted from exposure to or blasting from the tideland mining area registered in the name of the non-indicted 3 corporation (hereinafter “non-indicted 3 corporation”) in the form of filling them as earth by reclaiming them into a nearby lower-class.”

Meanwhile, with respect to the attribution of minerals separated from land, Article 5(1) of the former Mining Industry Act (amended by Act No. 9882, Jan. 27, 2010; hereinafter “former Mining Industry Act”) provides that “The minerals separated from land in a mining area without a mining right or mining concession right shall belong to the mining right holder or mining concession holder.” However, upon the amendment by Act No. 9882, Jan. 27, 2010 (amended by Act No. 9882, Jan. 28, 2011; hereinafter “Revised Mining Industry Act”) Article 5(1) of the same Act provides that “However, the minerals separated from the land in the course of the cultivation of crops, construction of structures, construction of a building, etc. by a landowner or a person who has a legitimate right to land shall belong to the relevant land owner or a person who has a legitimate right to the land, but the landowner or a person who has a legitimate right to the land may not transfer the said minerals for profit.”

In addition, Article 4 (1) of the Addenda to the amended Mining Industry Act provides that "Transitional Measures concerning Mining Rights, etc. for which authorization for a mining concession plan has not been obtained" shall be subject to the previous provisions, notwithstanding the amended provisions (excluding the proviso to Article 5 (1) and Article 10-2) with respect to mining rights, etc. for which an application for the establishment of a mining right is filed or for which permission for the establishment of a mining right is not obtained pursuant to Article 15 of the former Mining Industry Act at the time of the enforcement of the amended Mining Industry Act, or mining rights, etc. for which no authorization for a mining plan has been obtained pursuant to Article 42 of the former Mining Industry Act."

2. The court below held that the main sentence of Article 4 (1) of the Addenda of the Mining Industry Act as mentioned above shall be applied to cases where the establishment of a mining right is in progress pursuant to the previous provisions of Article 4 (1) of the Addenda of the same Act, considering the following: (a) the previous provisions shall apply to cases where the establishment of a mining right is in progress pursuant to the previous provisions despite the amendment of some administrative regulations or procedures; (b) the amended provisions shall apply to the substantive legal relationship, such as Article 5 (Separate Minerals Reversion) and Article 10-2 (Legal Capacity of Foreigners); (c) the extraction rights, etc. under the previous provisions shall be established, registered, and authorized for a mining plan; and (c) the substantive legal relationship, such as attribution of separated minerals, shall be uniformly regulated; and (d) the proviso to Article 4 (1) of the Addenda of the same Act shall be applied to cases of this case without such exclusion.

In addition, the lower court determined as follows: (a) although the ownership of separated minerals under Article 5(1) of the amended Mining Industry Act is, in principle, a mining right holder or a mining concession holder; (b) however, (c) when minerals are separated in the course of construction, etc. by a landowner or a person who has a legitimate right to land, the lower court newly determined that such amendment was made based on anti-biological consideration to reasonably reorganize the mining right, such as changing the duration of the mining right by converting the mining right into the exploration right and the extraction right and changing the duration of the mining right, in order to resolve the issue where there is a case where the registration of the mining right and the development of mineral resources is not made even if the mining right is granted in

Accordingly, the court below affirmed the judgment of the court of first instance which acquitted the Defendant on the ground that “The instant mineral is separated from the land in the process of construction of the golf course of Nonindicted Company 2, a landowner, and thus, it is owned by Nonindicted Company 2, not Nonindicted Company 3; and ② the Defendant was granted comprehensive authority related to the instant mineral construction by Nonindicted Company 2 while working as the site manager of the golf course construction contracted by Nonindicted Company 2 by Nonindicted Company 1 as the owner of the instant mineral; thus, in full view of the fact that the instant mineral disposal act also appears to have obtained the presumed consent of Nonindicted Company 2, the owner of the instant mineral, the instant mineral disposal act is governed by the new law pursuant to Article 1(2) of the Criminal Act, and constitutes a case where punishment was repealed due to the repeal of the law after the crime under Article 326 subparag. 4 of the Criminal Procedure Act

3. However, we cannot agree with the above determination by the court below for the following reasons.

A. In full view of the language, structure, etc. of Article 4(1) of the Addenda to the Mining Industry Act as seen earlier, it is deemed that not only the mining right that takes place after the amendment of the proviso of Article 5(1) newly established under the amended Mining Industry Act, but also the mining right that has already been completed by some or all of the procedures necessary for the establishment or mining of the mining right under the former Mining Industry Act at the time of enforcement.

However, even though Article 4(1) proviso of the Addenda of the amended Mining Industry Act provides that Article 5(1) proviso of the amended Mining Industry Act shall also apply to the mining right that had been progress even before the enforcement of the amended provisions, insofar as the amended Mining Industry Act does not explicitly provide for the ownership of the minerals whose separation has already been completed before the enforcement of the amended Mining Industry Act, the proviso of Article 5(1) proviso of the amended Mining Industry Act applies only to the ownership of the minerals that have already been separated after the enforcement of the amended Mining Industry Act, and it cannot be deemed that the ownership of the mining right holder, etc. belongs to the land owner, etc. through the application of the proviso of Article 5(1) proviso of the amended Mining Industry Act as to the minerals that had already been divided before the enforcement of the amended Mining Industry Act.

Therefore, the proviso of Article 5 (1) of the amended Mining Industry Act cannot be applied to the facts charged in this case, which imposes criminal responsibility for the damage to property on minerals separated prior to the enforcement of the amended Mining Industry Act, pursuant to Article 4 (1) of the Addenda to the amended Mining Industry Act.

B. In addition, the provisions of Article 1(2) of the Criminal Act shall apply to cases where the evaluation of acts deemed to have been committed in the past due to the changes in the legal ideology that served as the reason for the enactment of penal statutes is different and recognized as a crime and punished as such, and where the act itself was unfair, or where the legislation was amended or amended in light of reflect that excessive punishment was excessive (see, e.g., Supreme Court Decision 2009Do12930, Mar. 11, 2010).

However, there is no record that the newly established proviso of Article 5(1) of the revised Mining Industry Act, beyond recognizing the land owner, etc. to have ownership under the civil law with respect to minerals that are separated in the process of exercising his/her ordinary rights by the land owner, etc., pursuant to the former Mining Industry Act, the damage or disposal by the land owner, etc. to the minerals that have already been owned by the mining right holder, etc. is deemed to have been punished as a crime.

Therefore, insofar as the newly established proviso of Article 5(1) of the amended Mining Industry Act cannot be deemed as an amendment or repeal of the Act that was made from reflective consideration that it was unreasonable to punish the act of the landowners, etc. with respect to minerals for which ownership belongs to the mining right holders, etc. under the former Mining Industry Act as a crime, it cannot be deemed that the facts charged in this case regarding the damage of property for minerals separated prior to the enforcement of the amended Mining Industry Act pursuant to

C. Nevertheless, the court below affirmed the judgment of the court of first instance which acquitted the charges of this case on the ground that the proviso of Article 5 (1) of the amended Mining Industry Act is applied to the charges of this case pursuant to Article 4 (1) of the Addenda to the amended Mining Industry Act, and thus, the mineral of this case is owned by Nonindicted Company 2, a land owner, not a mining right holder, or the new law is applied pursuant to Article 1 (2) of the Criminal Act, and thus, constitutes “when punishment has been abolished due to the repeal of the Acts and subordinate statutes after the crime”. This judgment of the court below is erroneous in the misapprehension of legal principles as to Article 5 (1) of the amended Mining Industry Act or Article 1 (2)

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ko Young-han (Presiding Justice)