Open Decision Ledger · Constitutional, administrative & state liability
Ancillary hot spring wells and the 1,000-metre limit to another owner's well
Supreme Court, Dec. 11, 2025, 2022Du60912 (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: 토지굴착변경허가반려처분취소
Official text on the National Law Information Center
Question
How is it decided whether an application by the owner of an existing hot spring well, made to secure more hot spring water ancillary to that well, falls within the parenthesis in Article 12(4)(iii)(a) of the Hot Spring Act, and may the mayor or county magistrate still refuse permission where another person's notified well lies within 1,000 metres of the site?
Holding
Whether an application is for an ancillary well is decided by weighing the position, form, nature and structure of the land of the existing well and the land to be excavated, the course of hot spring development and use since the existing well was dug, the time gap between the two excavations and the motive for the new excavation, and the applicant bears the burden of proving that it is. Even where the owner of an existing notified well applies for such an ancillary well, the mayor or county magistrate may not grant permission where another person's notified well lies within 1,000 metres, unless there are special circumstances such as that person's consent to the excavation. The Supreme Court therefore dismissed the plaintiff's appeal against the refusal.
Points at issue, verbatim
온천발견신고가 수리된 기존 온천공의 소유자가 그 온천공의 이른바 보조공을 위한 굴착허가를 신청하였으나, 그 굴착 신청지로부터 수평거리 1,000m 이내에 온천발견신고가 수리된 타인 소유의 기존 온천공이 존재하는 경우, 시장·군수가 굴착허가를 할 수 있는지 여부(원칙적 소극)
Unofficial English translation
Where the owner of an existing hot spring well whose hot spring discovery report has been accepted files an application for a drilling permit for a so-called auxiliary well of that hot spring well, but another person's existing hot spring well whose hot spring discovery report has been accepted exists within a horizontal distance of 1,000m from the drilling application site, whether the mayor or county governor may grant a drilling permit (in principle, negative)
Disposition
Dismissed Stated in the decision
상고를 기각한다. 상고비용은 보조참가로 인한 부분을 포함하여 원고가 부담한다.
Unofficial English translation
The appeal is dismissed. The plaintiff shall bear the costs of appeal, including the portion arising from the auxiliary intervention.
Form of the test
Circumstances weighed Stated in the decision
여러 사정을 종합해서 판단하여야 하고
Unofficial English translation
must be determined by comprehensively considering various circumstances, and
Factors
- 제3호 (가)목의 적용을 제외하는 괄호의 ‘온천수 추가 확보를 위하여 기존 온천공에 부수하여 굴착허가를 신청한 경우’ 이른바 보조공을 위한 굴착허가에 해당하는지 판단하는 방법
- 그 굴착 신청지로부터 수평거리 1,000m 이내에 온천발견신고가 수리된 타인 소유의 기존 온천공이 존재하는 경우
- 그에 관한 증명책임의 소재(=신청자)
Unofficial English translation
• The method of determining whether a drilling permit application falls under the case set forth in the parentheses excluding the application of subparagraph 3 (a), namely, 'a case where an application for a drilling permit is filed as incidental to an existing hot spring well in order to secure additional hot spring water,' i.e., a drilling permit for a so-called auxiliary well
• Where another person's existing hot spring well whose hot spring discovery report has been accepted exists within a horizontal distance of 1,000m from the drilling application site
• The allocation of the burden of proof in relation thereto (= the applicant)
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2010. 2. 11. 선고 2009두18035 판결
Unofficial English translation
Supreme Court Decision 2009Du18035 decided February 11, 2010
Decisions referred to
해당 본문 참조
Burden of proof
The party asserting Stated in the decision
그에 관한 증명책임은 보조공을 위한 굴착허가를 신청한 자에게 있다
Unofficial English translation
the burden of proof in relation thereto lies with the person who filed the application for a drilling permit for an auxiliary well
Open question and revisit condition
Where several other owners' notified wells lie within 1,000 metres of the site, does consent from one of them suffice to permit an ancillary well for one's own well?
A later decision on whether consent from one of several neighbouring owners is enough would require this entry to be read again, as would an amendment to Article 12(4)(iii)(a) or Article 22(1)(i) of the Hot Spring Act, which the Court relied on for the protective purpose of the distance rule.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-24
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 “Where several other owners' notified wells lie within 1,000 metres of the site, does consent from one of them suffice to permit an ancillary well for one's own well?” vs Independent “What special circumstances other than the neighboring owner's consent could permit auxiliary drilling within the 1,000-meter limit?”
The primary asks whether one owner's consent suffices when several owners are affected, while the independent asks what circumstances other than consent permit drilling.
온천발견신고가 수리된 기존 온천공의 소유자가 그 온천공의 이른바 보조공을 위한 굴착허가를 신청하였으나, 그 굴착 신청지로부터 수평거리 1,000m 이내에 온천발견신고가 수리된 타인 소유의 기존 온천공이 존재하는 경우, 시장·군수가 굴착허가를 할 수 있는지 여부(원칙적 소극)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 Daegu High Court, in its judgment of 30 September 2022 (2022Nu2351), held that the change-permit application could not be regarded as an application for an ancillary well under the distance provision, so the defendant was not bound to grant it. It also found a statutory ground for refusal, because existing wells 3 and 4 owned by the auxiliary participant lie within 1,000 metres of the site, and held that the defendant could require the plaintiff either to secure ownership of the land on which those wells stand or to obtain and submit a consent form from the participant. On that basis it held the refusal lawful and dismissed the claim.
Supreme Court standard: The Supreme Court held that the court below had erred in judging the lawfulness of the refusal on a new ground, that the application could not be treated as one for an ancillary well, which lacked identity with the ground of the refusal and the basic factual relations. The conclusion nevertheless stood: existing wells 3 and 4 owned by the participant lie within 1,000 metres of the site and the plaintiff had no consent from the participant, so the defendant could not grant the permit and the ground of the refusal was established. The error did not affect the outcome, so the appeal was dismissed and the costs, including those arising from the auxiliary participation, were laid on the plaintiff.
Distinguishing conditions
- A case in which the owner of another person's notified well within 1,000 metres consents to the excavation, which the Court named as a special circumstance permitting the grant.
- A case in which no other person's notified existing well lies within 1,000 metres of the application site, so that the distance provision does not come into play.
- A case in which the ground of refusal given in the administrative disposition differs from the ground argued in court without identity in the basic factual relations, since a new ground may be accepted only within that identity.
Record verification notes
Set the wording of the original refusal notice against the reasons the agency actually gave, because review of the ground of disposition is confined to their identity. Then search the hot spring management register for every notified well within 1,000 metres of the site, with its owner and horizontal distance, and record what consent, if any, each owner has given. Keep the point that the applicant bears the burden of proving the application is for an ancillary well, and that the auxiliary participant's costs fall on the plaintiff in this case.
From the official text
Points at issue
[1] 온천법 제12조 제4항에서 정한 굴착허가 제외사유 중 제3호 (가)목의 적용을 제외하는 괄호의 ‘온천수 추가 확보를 위하여 기존 온천공에 부수하여 굴착허가를 신청한 경우’ 이른바 보조공을 위한 굴착허가에 해당하는지 판단하는 방법 및 그에 관한 증명책임의 소재(=신청자) [2] 온천발견신고가 수리된 기존 온천공의 소유자가 그 온천공의 이른바 보조공을 위한 굴착허가를 신청하였으나, 그 굴착 신청지로부터 수평거리 1,000m 이내에 온천발견신고가 수리된 타인 소유의 기존 온천공이 존재하는 경우, 시장·군수가 굴착허가를 할 수 있는지 여부(원칙적 소극)
Unofficial English translation
[1] The method of determining whether a drilling permit application falls under the case set forth in the parentheses excluding the application of subparagraph 3 (a) among the grounds for exclusion from drilling permission prescribed in Article 12 (4) of the Hot Springs Act, namely, 'a case where an application for a drilling permit is filed as incidental to an existing hot spring well in order to secure additional hot spring water,' i.e., a drilling permit for a so-called auxiliary well, and the allocation of the burden of proof in relation thereto (= the applicant) [2] Where the owner of an existing hot spring well whose hot spring discovery report has been accepted files an application for a drilling permit for a so-called auxiliary well of that hot spring well, but another person's existing hot spring well whose hot spring discovery report has been accepted exists within a horizontal distance of 1,000m from the drilling application site, whether the mayor or county governor may grant a drilling permit (in principle, negative)
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
상고를 기각한다. 상고비용은 보조참가로 인한 부분을 포함하여 원고가 부담한다.
Unofficial English translation
The appeal is dismissed. The plaintiff shall bear the costs of appeal, including the portion arising from the auxiliary intervention.
Provisions referred to
[1] 온천법 제12조 제1항, 제4항 제3호 (가)목 / [2] 온천법 제12조 제1항, 제4항 제3호 (가)목
Read 2026-10-24 · Cross-read 2026-10-24. 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.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
Back to the ledger