(영문) 서울고등법원 2015.5.19. 선고 2014누8522 판결

The following facts are not disputed between the parties, or are recognized in full view of Gap evidence 1, 2, and 8-1, 2, 4-4, Gap evidence 7, 9-1 through 3, Eul evidence 5-1 through 4, Eul evidence 6 through 8, 10, Eul evidence 9, 11-1, 2-1, 2-1, and 5-1, 5-1, 5-2, 7, 7, 9-4, 4-1 through 4, 5-1 through 5-4, 6 through 8, 10, 9, 11-2, and 5-1, 5

(a) F building;

1) Seoul Gangnam-gu, Y, Z, and F Building, which is an aggregate building on the AA’s ground (hereinafter “instant building”), is a sale of five underground floors, 18,477.57 square meters of total floor area and neighborhood living facilities.

2) While the outer walls of the front 2 to 3th floor of the instant building consisting of a complex board, it is possible to install banners, etc., the outer walls of the 4 to 6th floor consisting of curtain Wall, and the outer walls of the 4-6th floor are in favor of. In the event that an electronic display board is installed on the wall at this place, it not only affects the safety of the building, but also harms the view right of the Subdivision owners of the part.

3) On the first floor of the instant building around 2010, there was a relation where an illegal packaging is installed, and the instant building was indicated as an “illegal building” on the building management ledger.

B. The manager, etc. of the instant building

1) On February 23, 2004, some sectional owners of the instant building constituted a management body of the instant building under the former Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 11555, Dec. 18, 2012; hereinafter referred to as the “Aggregate Buildings Act”), and notified the sectional owners of the instant building of the convocation of an assembly to hold an inaugural general meeting of the management body of the instant building that held the management body of the instant building on March 3, 2004, for the purpose of enacting the management rules.

2) Accordingly, the first general meeting of the management body of the instant building on the seventh floor of the instant building was held on March 3, 2004, and the first general meeting of the management body of the instant building (hereinafter referred to as the “general meeting”). Of total 182 sectional owners, a resolution was made to appoint a representative of each floor as the manager of the management body of the instant building (However, the above resolution was not effective as set forth in paragraph (4) below) with the consent of 65 members present at the meeting (65 members present at the meeting, the remaining 34 members present at the meeting) of the AB and 82 members (631 members of the voting shares) from among the sectional owners, and with the consent of 16 members of the sectional owners who were present at the meeting of the management body of the instant building.

3) From March 2004, J performed the management duties as the manager of the instant building management body from around March 2004.

4) On May 2005, some sectional owners of the building of this case filed a lawsuit against J as Seoul Central District Court 2005Kahap41202 to seek confirmation that he was not in the position of the manager of the management body of the building of this case, but lost at the first instance court, Seoul High Court 2005Na12279. On November 30, 2006, the management body of the building of this case was appealed by Seoul High Court 2005Na12279. On March 30, 2004, the first general meeting of the management body was approved as the manager of the building of this case by presenting the management body’s articles, the regulations and the regulations of the management body of this case as the regulations of the management body of this case, which are the first general meeting of the management body of this case. However, the sectional owners present at the management body meeting of this case were not in the position of the manager at the general meeting of the management body of this case for appointment of the management body of this case and the quorum of this case.

5) Meanwhile, around May 2006, some of the sectional owners under the above 4 applied against J to the Seoul High Court for the provisional disposition of suspending the performance of their duties (Seoul High Court 2006Kahap543) and the execution of duties by J was suspended upon the acceptance of the above application on September 11, 2006.

6) On November 30, 2006, the Seoul High Court appointed G, one of the sectional owners of the instant building, as the manager of the instant building management body.

7) On January 8, 2010, G applied for a provisional disposition against G to suspend the performance of duties by Seoul Central District Court 2010Kahap544, and the above court rendered a provisional disposition on August 4, 2010, stating that “G shall not perform its duties as an acting manager of the management body of the instant building until the judgment on the merits of the claim seeking confirmation of the absence of the acting manager’s authority as the manager of the management body of the instant building becomes final and conclusive.”

8) From that date, Seoul Central District Court did not have a custodian until H attorney-at-law was appointed as a temporary manager of the management body of the instant building.

1) C (operator Co., Ltd.) concluded a lease agreement with J on the wall surface of the instant building in order to install advertisements on the front wall of the instant building.

2) A around October 2009, around the third floor of the instant building, filed an application with the Defendant for permission to install an electronic sign board on the wall surface of the third floor of the instant building, and the Defendant submitted the said permitted agenda to the Gangnam-gu Advertising Management Deliberation Committee. However, the said Committee rejected the said agenda on the ground that it fails to meet the announcement standards that the location of the wall installation should be at least four stories.

3) On February 10, 2010, C entered into a lease agreement with G, who is a manager for the management body of the instant building, as follows:

Purpose of lease: An object of installation lease of advertisements (electronic sign board) on the surface external wall of the instant building: The lease deposit period of 5 years from the date of conclusion of the contract: 200 million won: Provided, That where electric signs are installed by obtaining permission for the installation of C, the monthly rent shall be KRW 9 million, and if electric signs are installed by obtaining permission for installation, the monthly rent shall be KRW 9 million, and if an advertisement is installed by obtaining electric signs, the monthly rent shall be KRW 15 million.

4) On June 2010, C applied for a re-application by setting the location of an electronic display board installed on the wall of this case as the fourth floor on the front floor of the instant building. However, on June 25, 2010, C cannot set up an electronic display board on the wall of the instant building on the wall surface, and it again rejected the said agenda on the ground that it is an unlawful building.

5) On July 2010, C filed an application for the permission of the same content as above 4, with a view to resolving 'illegal building condition', the end of the 1st floor of the instant building expressed its intent to remove it. Accordingly, on July 30, 2010, C made a large-scale repair report to the Defendant after executing 'large-scale repair’ with solid windows and other similar structures installed on the part of the curtain C, the 1st floor of the instant building, with the condition to remove the illegal packaging end of the 1st floor of the instant building, and passed the said permitted agenda.

6) On August 2010, C received a written consent from G to the installation and use of the following contents (A evidence 5-1, hereinafter referred to as “written consent to use”) from G around August 2010.

The place of installation: The installer of the building of this case in Gangnam-gu Seoul (HED): C., size and quantity: x 18.0m wide: x 8.7m wide (HED): the date of approval of the electronic display (LED): the date of approval: August 2, 2010

7) G, the following, which was confirmed as invalid as described in the above b. 4, did not go through any procedure, such as the consent of the sectional owners of the instant building, in particular the consent of the sectional owners of the fourth to sixth floors, or the approval of the Representative Committee, based on the management rules of the instant building (Evidence 7).

제1장 총칙제1조(명칭) 본 관리단은 '강남 F 상가관리단'이라 칭한다.제3조(용어의 정의) 본 관리단 정관에서 사용하는 용어의 정의는 다음 각 호와 같다.(8) 대표위원이라 함은 각 층의 구분소유자가 선출한 대표를 말한다.(9) 대표위원회라 함은 총회에서 위임하였거나 이 정관 또는 관리단규약에 의하여 시행|하는 제반 관리업무를 결정하기 위하여 대표위원으로 구성된 의결기구를 말한다.(10) 관리인이라 함은 강남 F 상가건물에 대하여 관리, 보존, 운영, 발전시키는 관리단의 대표를 말한다.제2장 전유 및 공용부분

In the case of paragraph (2), when the change in the section for common use has a special effect on the rights of other sectional owners, the consent of those sectional owners shall be obtained.In the case of Article 9 (Change of Section for common Use, etc.)(1), the change in the section for common use shall be made by the approval of the Representative Committee for a certain period of time after collecting a certain amount of fee from the specific sectional owners or third parties and converting it for a certain period of time with the approval of the Representative Committee.

(d) Permission, etc. for display of advertisements against C;

1) On November 19, 2010, C filed an application for permission to display the instant advertisement with the Defendant on the attached documents, and submitted the following documents: (a) on November 15, 2010, the Defendant’s report completion certificate (Evidence A3); (b) the removal of illegally packed end cars of the first floor of the instant building; (c) the request for cancellation of marking illegal buildings on the aggregate building register of the Gangnam-gu Office Housing and the head of the instant building following the said removal; and (d) the letter of consent to the use of the instant building management body (No. 5-3; (c) the date of preparation is indicated as “1 November 201” and the official seal of the management body was written by the manager (the F.7) and the seal of the management body was affixed to the manager (the seal of the instant building) and the official seal of the manager (the F.7) at the time when it was omitted.

2) Accordingly, the Defendant requested on November 22, 2010 and C to supplement the documents pertaining to the application for the instant advertisement display as follows.

○ Submission of a written consent to the use of the building

제출된 관리단의 직인과 상가관리단 규약에 날인된 직인이 상이하므로 “집합건물의 소|유 및 관리에 관한 법률” 규정에 의한 관리단 직인 날인 (날인권자인 관리인의 인적사항 포|함)○ 건축물관리대장상 등재된 위법 건축물 해제 후 “건축물관리대장 제출건축법 제79조 제2항에 의하면 허가나 승인이 취소된 건축물 또는 제1항에 따른 시정명령을 받고 이행하지 아니한 건축물에 대하여는 다른 법령에 따른 영업이나 그 밖의 행위를 허가하지 아니하도록 요청할 수 있다.

3) On December 6, 2010, C concluded a lease agreement with an advertising business operator on February 10, 2010 to install electric display boards installed on the wall surface of the instant building with the Defendant on the wall surface of the instant building on which the indication of "illegal building was cancelled; and (b) on the wall surface of the instant building was signed on February 10, 2010; on this basis, the written consent of use issued by the management body of the instant building was confirmed to be the legitimate declaration of intention of the management body of the instant building; and (c) the vindication statement around December 2010 of the joint title of "F manager, G and general manager acting for the duties," which was almost identical to the written consent of use on November 2010, and the official seal of the management body in the same shape as the official seal of the manager (i.e., the 20th official seal of the instant building which was signed and sealed by the management body, which was not the 20th official seal of the management body; and (iii) the 10th official seal of the instant building.

4) However, in light of the fact that a 'large repair' was implemented in front of the 4-6th floor of the building of this case with solid windows and other similar structures installed in the Curtain Wall, and the official seal affixed on the 1st floor of the building of this case was consistent with the official seal affixed by the management body of the building of this case on December 12, 2010, the Defendant was deemed to have consented to the use of the building of this case, and upon considering that the official seal affixed on the 'written consent of use' is consistent with the official seal affixed by the management body of the building of this case, C has approved to use the building of this case, it was approved to install an outdoor street electronic sign board (hereinafter "the advertisement of this case") with the following contents installed on the outer wall of the building of this case (hereinafter "the advertisement of this case").

Types of advertisements, etc.: The number of street (electronic display board): 18.0m x8.7m (Lighting: DoD) display location and place: Gangnam-gu Seoul Metropolitan Government E buildings, 4th to 6th floor display period: The content of advertisements from December 6, 2010 to December 5, 2013: Commercial advertisements and public service advertisements.

E. Acquisition of the Plaintiff’s right to permission for display

1) On September 9, 201, the Plaintiff acquired the right to permission for display of the instant advertisement from C, and received a certificate of permission for display of outdoor advertisements, etc. (certificate A No. 1-2) from the Defendant on September 9, 201 after reporting the change to the Defendant, such as the manager, etc.

2) On September 9, 2011, the Plaintiff entered into a lease agreement between the temporary manager H of the instant building management body and the temporary manager H on the same purpose as the foregoing paragraph (c) 30 million won, the term of the contract, five years, and the monthly rent of KRW 15 million.

F. Commencement of installation works on electronic displays by the Plaintiff and suspension order by the Defendant

1) On November 2, 2011, the Plaintiff received “a certificate of permission for electric display construction (Evidence A6)” from the temporary manager H of the instant building management body H.

2) Around that time, the Plaintiff started construction work to install electric sign boards on the fourth-sixth floor of the instant building. On November 14, 201, the shop owners of the instant building submitted a civil petition to the Defendant stating that “No agreement was made on the construction of electric sign boards on the instant building’s outer wall, and there was no infringement of view rights, and thus, there was a change in the suspension of construction of electric sign boards.”

3) On November 16, 201, public officials of Gangnam-gu Office investigated the site of the instant building on November 16, 201, and prepared a report to the Defendant stating that “The alteration of the exterior and large-scale repair of the opening of the building is a state in which it is entirely not implemented, and is maintaining an illegal old point after the building,” and reported it to the Defendant.

4) Accordingly, the Defendant ordered the Plaintiff to suspend the installation of the electronic sign board on November 17, 201 and on the ground that the conditions of permission for installation of the electronic sign board were not fulfilled, and that there was a group civil petition following the infringement of the view right of the sectional owners of the instant building.

G. Revocation of permission for display by the defendant

On December 29, 2011, the defendant revoked the permission for displaying the advertisement of this case on the ground that the plaintiff falls under Article 13 (1) 1 of the Outdoor Advertisements, etc. Control Act (hereinafter referred to as the "Outdoor Advertisements Act") (hereinafter referred to as the "the disposition of this case") on the ground that the plaintiff's reason (hereinafter referred to as "the ground for original disposition of this case" referred to as "the grounds for disposition of this case") as follows.

① Failure to perform a large-scale repair before installing the instant advertisement on the instant building: Terms and conditions before filing the application: (2) The degree of illegal packaging pents installed in the instant building site: Issuing the written consent of the manager suspended (No.4) the official seal of the manager of the management body affixed with the consent of the use of the building.

H. Application for extension by the Plaintiff

Although the display period under the permission for display of the instant advertisement expired on December 5, 2013, the Plaintiff submitted an application for permission to extend the display period to the Defendant pursuant to Article 10 of the Enforcement Decree of the Outdoor Advertisement Act, and the Defendant withheld the decision on whether to grant permission.

I. Additional grounds for the defendant's disposition

In the lawsuit of this case, the defendant added the ground for disposition that "the permission for display of the advertisement of this case (profit-making administrative act) is revoked ex officio with the consent of use made without the resolution of the assembly of management body of the building of this case (hereinafter "the ground for disposition of this case")" (hereinafter "the ground for disposition of this case").

2. Ex officio determination on the benefit of a lawsuit

According to the above, the display period under the permission for display of the instant advertisement is until December 5, 2013, and it is apparent that the period has already been exceeded as of the date of closing argument in the instant case.

However, since a person who has obtained permission for displaying outdoor advertisements under Article 3 of the Outdoor Advertisements Act may apply for the extension of the display period under Article 10 of the Enforcement Decree of the same Act, the plaintiff can obtain permission for extension of the display period on the premise that the previous permission disposition is valid under the above Acts and subordinate statutes. Therefore, the plaintiff has the interest in seeking the cancellation of the disposition of this case, notwithstanding the expiration of the display period under the permission for displaying the advertisements of this case

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Non-existence of the original disposition of this case

A) The instant permission did not contain any conditions of permission such as ① and ② the instant initial disposition grounds, and even if such conditions of permission are deemed to exist, the Plaintiff fully implemented the instant permission.

B) In light of the fact that a management body consisting of all sectional owners as an aggregate building becomes a manager of the instant building and its manager represents the management body externally. At the time of August 2, 2010, C received a written consent of the manager G of the instant building to use the instant advertisement for installing the instant advertisement from the manager of the instant building, who was holding an exclusive license to use common areas pursuant to the Commercial Building Management Rules, as of August 2, 2010, and C was holding the substantial right to install the advertisement on the outer wall of the instant building at the time of obtaining the permission to display the instant advertisement from the Defendant on December 6, 2010, even if C’s official seal affixed on the written consent to use the instant advertisement among the accompanying documents submitted by C while applying for the permission to display the instant advertisement, it cannot be deemed that C obtained the permission to use the instant advertisement by false or other unlawful means, and it is difficult to view that C had any defect in the procedure for using the instant advertisement necessary for the permission to use the instant building.

(ii) the deviation and abuse of discretionary power;

In light of the fact that the Plaintiff holds a substantive right to install advertisements on the outer wall of the instant building even if the grounds for the instant disposition exist, the instant disposition is excessively disadvantageous to the Plaintiff compared to the public interest that could be achieved by the instant disposition, so it is erroneous in the misapprehension of the scope of discretion or abuse of this disposition.

B. Relevant statutes

Attached Form 3 is as listed in the "relevant Acts and subordinate statutes".

C. Determination on the ground of original disposition of this case

1) The ground for original disposition in this case ①, ② existence

A) Since the administrative act of the other party is established when external display was made, even if an administrative agency grants a certain license inside a certain area of permission, it shall be deemed that the permission is not a condition-free permission if the conditions of permission are not indicated externally against the other party. Therefore, it is reasonable to deem that the permission of this case is a condition-free permission as stated in subparagraph 1-1 and subparagraph 2 as of December 6, 2010 or as of September 9, 201 when the defendant issued to C a certificate of permission for display of the advertisement of this case (report completion) to the Plaintiff as of December 6, 2010 or as of September 9, 201, it is insufficient to recognize that the condition of permission was externally indicated, such as ①, ②, before installing the advertisement of this case on the building of this case, and ②, there is no other evidence to acknowledge that the permission of this case is a condition-free permission.

B) Even in cases where the instant permission was deemed to have the same conditions of permission as the indicated in subparagraph 3, subparagraph 4-1 to 3, subparagraph 2, and subparagraph 3, the following circumstances are revealed, namely, C had the certificate of large-scale repair of the instant building issued by the Defendant on November 15, 2010, prior to obtaining the permission for display of the instant advertisement, prior to which the Defendant had obtained the permission for large-scale repair of the instant building, and C removed the illegal packaging of the instant building on November 1, 2010. At the time of the instant permission, C taken photographs by the Defendant’s staff to verify and verify that the illegal packaging was removed at the site, and thereafter, on November 8, 2010, it is difficult to readily conclude that the Defendant’s conditions of permission were the same as at the time of the instant permission for display, in light of the fact that the illegally displayed building on the aggregate building ledger of the instant building was revoked, as at the time of the instant permission for display, and that it was difficult to recognize the existence of the instant permission for installation.

C) Therefore, the Plaintiff cannot be deemed to exist (i) and (ii) of the instant initial disposition.

2) Grounds for the original disposition in this case (3), (4), and (5) existence

A) Whether a defective written consent to use is submitted

(1) Article 3 of the Outdoor Advertisements Act provides that a person who intends to display or install an advertisement or a bulletin facility prescribed by Presidential Decree (hereinafter referred to as "advertising, etc.") in an urban area shall obtain permission from the head of an autonomous Gu, as prescribed by Presidential Decree. Accordingly, Article 7(1) of the former Enforcement Decree of the Outdoor Advertisements Act (amended by Presidential Decree No. 2226, Jan. 17, 201) provides that "where he/she intends to display an advertisement, etc. on land or a thing owned or managed by another person, etc., he/she shall submit documents proving that he/she has obtained approval from the owner or manager of the advertisement, etc. to the head of an autonomous Gu, etc. along with the application for permission to display the advertisement, etc., and all of the grounds of original disposition in the instant case (iii), (iv) and (6) can be understood as "

(2) Meanwhile, Article 15(1) of the Aggregate Buildings Act provides that matters concerning the change of a section for common use shall be determined by a resolution of at least 3/4 of the sectional owners and at least 3/4 of voting rights at the managing body's meeting. Article 15(2) provides that where the change of a section for common use has a special effect on the rights of other sectional owners, the consent of those sectional owners shall be obtained. Here, the change of a section for common use shall be determined by considering the appearance and structure of the existing section for common use or the alteration of its function and purpose, and its scope, the method or mode of the change, the identity in appearance and use after the change of the previous section for common use, and other expenses required for the change (see, e.g., Supreme Court Decision 2006Da86597, Sept. 25, 2008). Furthermore, Article 28(1) of the Aggregate Buildings Act provides that "any matters not provided for in this Act among the matters concerning the management or use of the said section for common use can be determined by a resolution of the management body's.

(3) According to the following circumstances, Gap evidence 1-1, Gap evidence 11, 12, and 13's respective arguments and the purport of all pleadings, the 4-6th floor outer walls, which are the location of the advertisement of this case, are finished with curta Wall, non-proof outer walls) in the public method, as well as the function of windows for the safety and external view of the building, the installation of the wall of this case is closely connected to AD and especially the view function of the installation of the wall of this case, and the installation of the wall of this case is 18m wide and 8.7m wide from 10m wide from 6m wide from 5m wide from 6m wide from 5m wide from 4m wide from 5m wide from 6m wide from 4m wide from 5m wide from 4m wide from 5m wide from 4m wide from 7m wide from 5m wide from 5m wide from 4m wide from 5m wide from 8m wide from 77m wide from m high.

B) Whether the permission was obtained by fraud or other improper means

(1) Article 13(1)1 of the Outdoor Advertisements, etc. Control Act provides that a person who obtains permission or files a report by fraud or other improper means may revoke permission for advertisements, etc. In this context, "the case of obtaining permission or filing a report by fraud or other improper means" refers to the case of obtaining permission by committing an act deemed unfair by social norms, such as fraud, deception, concealment, etc., without satisfying the requirements for permission. It does not mean the case of obtaining permission simply without complying with the requirements for obtaining permission.

(2) However, in light of the above legal principles, it is acknowledged that C was unable to obtain a valid approval of the outer wall of the building of this case in order to install the advertisement of this case, as seen earlier, it is difficult to view that C obtained a permission as a "false or any other unlawful means" on the sole basis of such fact.

(A) On February 10, 2010, C entered into a lease agreement for the installation of the instant advertisement with the owner of the instant outer wall or the manager G of the instant building with the knowledge that it is necessary to obtain permission for advertisement display on the outer wall of the instant building, and submitted a written consent for use in the name of the management body of the instant building that was received based on the said lease agreement, and thereby, C obtained permission for display of the instant advertisement from the Defendant. On September 9, 2011, the Plaintiff, who acquired the right to permission for display of the instant advertisement from C, entered into a lease agreement with H for the same purpose as the temporary manager H of the management body of the instant building. In other words, it is difficult to view that C knew that the resolution of the management body meeting under Article 15(1) of the former Aggregate Buildings Act and the consent of the sectional owner with a great interest in the outer wall of the instant building under Article 15(2) of the same Act was to be obtained.

(B) Around November 2010, C intended to submit to the Defendant a written consent of use as of August 2, 2010 when filing the instant application for permission for displaying the instant advertisement, and the Defendant’s employee in charge requested the submission of a written consent of use in close vicinity to the filing date of the application for permission. At the time of the said application, C was in a state where there is no manager representing the management body of the instant building at the time of the said application. As it is virtually impossible at the time to obtain the written consent of use by the manager of the instant building, C cannot be said to have submitted a written consent of use and a written vindication as of December 6, 2010 after C confirmed that it was a legitimate lessee of the instant outer wall of the instant building. C can be deemed to have concluded a lease contract for using the outer wall of the instant building and obtained the right to use the outer wall of the instant building with the written consent of use, and even if C does not have any validity after the said written consent of use, it cannot be deemed to have been submitted as a negative written consent of social norms.

D. Determination on the grounds for the instant additional disposition

(1) If a citizen acquires a certain benefit and right due to a certain administrative disposition, an administrative disposition to revoke it ex officio on the premise that there is a defect in the previous administrative disposition is a separate administrative disposition to deprive him/her of the existing interest and rights of the person who has already acquired it. Furthermore, even if there is a defect in an administrative disposition, it is necessary to revoke it. Furthermore, even if there is a defect in the administrative disposition, it is possible to revoke it only if it is a strong case to justify the disadvantage of the party to the public interest due to the necessity of public interest and cancellation, such as the protection of trust and infringement of the stability of legal life, etc., and the burden of proof on the need to revoke it is an administrative agency that has violated the existing interest and rights (see, e.g., Supreme Court Decision 2011Du2375, Mar.

(2) As seen earlier, there is a defect in the permission for display of the instant advertisement without the consent to valid use of the outer wall of the instant building, which is the requirement thereof. However, as seen earlier, the Plaintiff entered into a lease agreement with H, who is a legitimate manager of the instant building, to operate the instant advertisement business on September 9, 201, setting the lease deposit amount of KRW 300 million, monthly rent of KRW 15 million, and KRW 500,000,000, which is the term of lease. After completing installation of the instant advertisement with substantial construction cost, the Plaintiff is still running the instant advertisement business. The Plaintiff appears to have suffered significant financial loss and business loss if the permission for display of the instant advertisement is revoked, and the Plaintiff filed a large-scale repair report in accordance with the Defendant’s prior requirements, as well as the overall purport of the pleadings, and the following circumstances, which are acknowledged as comprehensively taking account of the overall purport of the pleading, namely, the possibility of the Plaintiff’s revocation of the permission to display the instant advertisement to the contrary to the public interest purpose.

E. Sub-decision

Therefore, the instant disposition should be revoked as it is illegal because it was conducted without any grounds for disposition or it was beyond the bounds of discretionary power.

4. Conclusion

Therefore, the judgment of the first instance is just, and the defendant's appeal is dismissed as it is without merit, and it is so decided as per Disposition.