Open Decision Ledger · Constitutional, administrative & state liability
Illegal conversion of former mountain land and the duty to restore it
Supreme Court, Aug. 26, 2021, 2020Du50584 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 대체산림자원조성비부과처분취소
Official text on the National Law Information Center
Question
Is land registered as woodland but in fact used as building land or road mountain land within Article 2(i) of the former Mountain Land Management Act, and must land that was mountain land or forest under that Act or the former Forest Act, and was converted without the permit procedure, be restored as mountain land?
Holding
Whether a parcel is mountain land under Article 2(i) of the former Mountain Land Management Act is decided by its actual condition, not by its registered category. Land that was mountain land or forest under that Act or the former Forest Act remains mountain land, absent special circumstances, even though it now serves another use, if it was converted without the permit procedure, because the changed condition is only temporary. To decide whether the land must be restored, the court must consider whether a duty to obtain a mountain land conversion permit existed under the statutes in force at the time of the conversion, and whether the conversion was lawful or unlawful.
Points at issue, verbatim
어떤 토지가 구 산지관리법 제2조 제1호에서 정한 ‘산지’인지 판단하는 기준 및 구 산림법상 ‘산지’ 또는 ‘산림’이었던 토지가 산지전용허가 등의 절차를 거치지 않은 채 불법 전용되어 현실적으로 다른 용도로 이용되고 있는 경우, 구 산지관리법상 ‘산지’에 해당하는지 여부(적극)
Unofficial English translation
The criteria for determining whether certain land constitutes 'mountainous land' as defined in Article 2, subparagraph 1 of the former Mountainous Land Management Act, and whether land that was 'mountainous land' or 'forest' under the former Forest Act but has been illegally converted without undergoing procedures such as permission for conversion of mountainous land and is in practice being used for another purpose falls under 'mountainous land' under the former Mountainous Land Management Act (affirmative)
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 서울고등법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Seoul High Court.
Form of the test
Elements stated Stated in the decision
산지의 전용 당시 관계 법령에 의하여 산지전용허가 등 의무가 존재하였는지, 그럼에도 산지전용허가 등을 받지 아니하고 전용이 이루어졌는지를 고려하여야 할 것이다.
Unofficial English translation
It must be taken into consideration whether, at the time of the conversion of the mountainous land, an obligation to obtain permission for conversion of mountainous land, etc. existed under the applicable statutes and regulations, and whether, notwithstanding that fact, the conversion was carried out without obtaining such permission.
Factors
- 어떤 토지가 구 산지관리법 제2조 제1호에서 정한 ‘산지’인지 판단하는 기준
- 구 산림법상 ‘산지’ 또는 ‘산림’이었던 토지가 산지전용허가 등의 절차를 거치지 않은 채 불법 전용되어
- 불법 전용된 구 산지관리법 또는 구 산림법상 ‘산지’ 또는 ‘산림’이었던 토지를 산지로 복구해야 하는지 판단하는 방법
Unofficial English translation
• The criteria for determining whether certain land constitutes 'mountainous land' as defined in Article 2, subparagraph 1 of the former Mountainous Land Management Act
• Land that was 'mountainous land' or 'forest' under the former Forest Act has been illegally converted without undergoing procedures such as permission for conversion of mountainous land
• The method for determining whether land that was 'mountainous land' or 'forest' under the former Mountainous Land Management Act or the former Forest Act and has been illegally converted must be restored as mountainous land
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2018. 6. 28. 선고 2015두55769 판결
Unofficial English translation
Supreme Court Decision 2015Du55769 decided June 28, 2018
Decisions referred to
[1] 대법원 2018. 6. 28. 선고 2015두55769 판결
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
What special circumstances, if any, mean that land illegally converted without the permit procedure need not be restored as mountain land?
A later decision that names the special circumstances the Court left open, or a record showing the date of the conversion and the permits then required, would call for this entry to be read again. An amendment to Article 2(i) of the former Mountain Land Management Act or to the current Forest Resources Creation and Management Act would do so as well.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 7 of the 8 axes; the readings differed on axis 8 (open question and revisit condition).
Axis 8 (Open question and revisit condition): Primary “What special circumstances, if any, mean that land illegally converted without the permit procedure need not be restored as mountain land?” vs Independent “When and under what legal requirements was the disputed land converted, and was that conversion lawful?”
The primary asks what special circumstances would excuse restoration, while the independent asks when the land was converted and whether that conversion was lawful under the requirements then in force.
어떤 토지가 구 산지관리법 제2조 제1호에서 정한 ‘산지’인지 판단하는 기준 및 구 산림법상 ‘산지’ 또는 ‘산림’이었던 토지가 산지전용허가 등의 절차를 거치지 않은 채 불법 전용되어 현실적으로 다른 용도로 이용되고 있는 경우, 구 산지관리법상 ‘산지’에 해당하는지 여부(적극)Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Seoul High Court, in its judgment of 10 September 2020 (2019Nu68024), held that the disputed parcel, though its registered category is woodland, had already lost its condition as mountain land when the implementation plan for the Ruonsiti urban development project was approved on 19 September 2016, and that this loss could not be treated as temporary. It therefore held that the parcel was not mountain land subject to the deemed mountain land conversion permit under the former Mountain Land Management Act, and that the respondent's imposition of KRW 153,105,440 in substitute forest resource creation charges on the plaintiff on 26 December 2018, which rested on the opposite premise, was unlawful.
Supreme Court standard: The Supreme Court held that the court below had failed to examine whether the disputed parcel was originally mountain land or forest under the former Mountain Land Management Act or the former Forest Act, the circumstances and timing of its use for another purpose, whether no permit was required by the statutes then in force, whether it was converted lawfully with the permits obtained, or whether it was illegally converted and must be restored. It held that the court below had decided the matter on the use condition alone, misapprehending the law on mountain land under the former Mountain Land Management Act and leaving necessary deliberation undone, an error affecting the judgment. It reversed the whole judgment and remanded the case to the Seoul High Court, unanimously.
Distinguishing conditions
- A parcel that was never mountain land or forest under the former Mountain Land Management Act or the former Forest Act, so that there is nothing to restore.
- A parcel converted lawfully, having obtained the mountain land conversion permit or report that the statutes in force at the time of conversion required.
- A parcel converted when no permit or report was required, such as land outside protection forest or private woodland of a slope under 20 degrees before 27 June 1961, where a permit or report was in principle unnecessary.
Record verification notes
Set the registered category aside and gather what the parcel actually was at the date the conversion took effect, then fix that date against the statutes then in force, since the duty to obtain a permit changed over time, in principle not required before 27 June 1961 for non-protection forest or private woodland of a slope under 20 degrees. Then look for the permit, report or administrative disposition that was required and for any evidence on the special circumstances the Court left open. Note that this decision does not decide whether the substitute forest resource creation charge was correctly assessed in amount.
From the official text
Points at issue
[1] 어떤 토지가 구 산지관리법 제2조 제1호에서 정한 ‘산지’인지 판단하는 기준 및 구 산림법상 ‘산지’ 또는 ‘산림’이었던 토지가 산지전용허가 등의 절차를 거치지 않은 채 불법 전용되어 현실적으로 다른 용도로 이용되고 있는 경우, 구 산지관리법상 ‘산지’에 해당하는지 여부(적극) [2] 불법 전용된 구 산지관리법 또는 구 산림법상 ‘산지’ 또는 ‘산림’이었던 토지를 산지로 복구해야 하는지 판단하는 방법
Unofficial English translation
[1] The criteria for determining whether certain land constitutes 'mountainous land' as defined in Article 2, subparagraph 1 of the former Mountainous Land Management Act, and whether land that was 'mountainous land' or 'forest' under the former Forest Act but has been illegally converted without undergoing procedures such as permission for conversion of mountainous land and is in practice being used for another purpose falls under 'mountainous land' under the former Mountainous Land Management Act (affirmative) [2] The method for determining whether land that was 'mountainous land' or 'forest' under the former Mountainous Land Management Act or the former Forest Act and has been illegally converted must be restored as mountainous land
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
원심판결을 파기하고, 사건을 서울고등법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Seoul High Court.
Provisions referred to
[1] 구 산지관리법(2016. 12. 2. 법률 제14361호로 개정되기 전의 것) 제2조 제1호, 제14조, 제15조, 제15조의2, 제44조, 구 산림법(2005. 8. 4. 법률 제7678호 산림자원의 조성 및 관리에 관한 법률 부칙 제2조로 폐지) 제2조 제1항 제1호(현행 산림자원의 조성 및 관리에 관한 법률 제2조 제1호 참조) [2] 구 산지관리법(2016. 12. 2. 법률 제14361호로 개정되기 전의 것) 제2조 제1호, 제14조, 제15조, 제15조의2, 제44조, 구 산림법(2005. 8. 4. 법률 제7678호 산림자원의 조성 및 관리에 관한 법률 부칙 제2조로 폐지) 제2조 제1항 제1호(현행 산림자원의 조성 및 관리에 관한 법률 제2조 제1호 참조)
Read 2026-10-25 · Cross-read 2026-10-25. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
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