[1] In a case where the title holder of a private document recognizes the establishment of the portion of the stamp image, etc., whether the whole document is presumed to have established the portion of the stamp image, etc. when the whole document was completed (affirmative in principle), and where such presumption has been reversed, the method of reversal of the presumption of the authenticity as a completion document and the burden of proof

[2] The standard point of time to determine whether an administrative disposition is unlawful is the time of the disposition

[3] The standard time to determine whether there was a change in the subparagraphs of Article 26(1) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, which provides an exception to the withdrawal of consent in calculating the number of consenters for the establishment

[4] Whether an unauthorized building is included in a building for which the owner is entitled to membership pursuant to Article 2 subparagraph 9 (a) and Article 19 (1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (negative in principle)

[5] Acts and subordinate statutes as the basis for determining the illegality of administrative disposition in an administrative litigation, the state of fact, and whether the cure of defective administrative act is permissible (negative in principle)

[6] Where an administrative agency approves modification of minor matters under each subparagraph of Article 27 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents after the administrative agency's disposition of approving the establishment of redevelopment association, whether the initial disposition of approving the establishment of the redevelopment association can be absorption into the disposition of approving modification

[1] Article 357 and Article 358 of the Civil Procedure Act, Article 26 of the Administrative Litigation Act / [2] Article 27 of the Administrative Litigation Act / [3] Article 26 (1), Article 28 (1) 5 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 21171 of Dec. 17, 2008) / [4] Article 2 subparagraph 9 (a) and Article 19 (1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9444 of Feb. 6, 2009) / [5] Articles 19 and 27 of the Administrative Litigation Act / [6] Article 16 (1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9444 of Feb. 6, 2009) of the Act

[1] Supreme Court Decision 94Da11590 decided Oct. 14, 1994 (Gong1994Ha, 2974) Supreme Court Decision 2001Da11406 decided Apr. 11, 2003 (Gong2003Sang, 1141) / [2] Supreme Court Decision 95Nu8461 decided Nov. 10, 1995 (Gong1995Ha, 3935) / [4] Supreme Court Decision 97Nu4975 decided Jul. 27, 199 (Gong199Ha, 1812), Supreme Court Decision 2009Ma168, 169 decided Sept. 24, 2009 (Gong209Ha, 206Ha, 20829) / [209Du16689 decided Nov. 26, 2016] Supreme Court Decision 209Du16684 decided Feb. 29, 20016

Plaintiff 1 (Law Firm Hex, Attorneys Kim Dong-dong et al., Counsel for the plaintiff-appellant)

Plaintiff 2 and seven others

The head of Dongdaemun-gu Seoul Metropolitan Government (Law Firm Square, Attorneys Yu-hee et al., Counsel for defendant-appellant)

Seoul High Court Decision 201Na14468 delivered on August 2, 2012

Seoul High Court Decision 2010Nu30231 decided July 22, 2011

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal by the Defendant and the Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor”) are also examined.

1. As to the assertion regarding consent rate of owners of land, etc.

A. The judgment of the court below

According to the reasoning of the judgment below, after compiling the adopted evidence, the court below found the facts as stated in its reasoning, and found the following facts, and added two (2) owners of lands, etc. except for six (617) owners of lands, etc. calculated by the defendant, and two (617) owners of lands, etc. excluded from the unknown whereabouts (2) and 615 (617 owners of lands, etc. - 6 + 2 (2) owners of lands, etc.). The decision of this case was revoked even if the consent of the owners of lands, etc. was not obtained as necessary for establishing an association, 458 consenters (468 owners of lands, etc. - 5 (468 owners - 465 - 5), and 74.47% (458/615 owners of lands, etc.) (458/615) of the unauthorized buildings, etc., and the consent of this case was revoked even if the consent of the owners of lands, etc. was not obtained.

B. Determination on the grounds of appeal by the Defendant and the Intervenor

(1) As to the validity of the written consent arbitrarily stating the design outline, etc. of a new building

(A) Inasmuch as a private document is presumed to be authentic when the signature, seal, or seal of the person or his agent is affixed, it is presumed that the person who prepares the private document has signed, sealed, or affixed the private document in question. Thus, in cases where it is recognized that the person who prepares the private document has affixed the signature, seal, or affixed the seal, etc., the authenticity of the entire document is presumed to have been established unless there are other special circumstances, and if the authenticity of the seal portion, etc. is recognized, the document is presumed to have been signed, sealed, or affixed under the circumstances where the entire document is completed, and the document is deemed to have been signed, sealed, or affixed under the circumstances where other special circumstances exist, and if it is intended to reverse the authenticity of the document as the completion document, evidence such as reasonable reasons and indirect evidence supporting it is necessary (see Supreme Court Decision 94Da11590, Oct. 14, 1994). If the presumption of the authenticity of such completed document as a blank document or its authority has been prepared and supplemented by 13010 persons who present the document or declared the document.

(B) According to the reasoning of the lower judgment, the lower court: (a) stated in the written consent of the owner of a plot of land, etc. on the establishment of an association, the estimated amount of expenses incurred in the design outlines, removal of a building, and construction of a new building on the establishment of an association; and (b) stated as the basis for determining whether the owner of a plot of land, etc. consents, along with the remaining matters concerning the ownership after the completion of the project; and (c) stated as the essential contents of the written consent in determining whether the owner of a plot of land, etc. consents; (d) stated as the premise that the written consent cannot be recognized as effective; and (e) stated as the premise that the establishment promotion committee of the Housing Redevelopment Act of the 3rd Urban Renewal Zone (hereinafter referred to as the “Promotion Committee”) of the 3rd Urban Renewal Zone (hereinafter referred to as “the 29th written consent”) did not provide any new written consent to the Defendant’s new written consent to the removal of the building, excluding the new written consent and new written consent from 5th of the 29th consent.

(C) Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, we affirm the judgment below with the exception of the number of consenters that did not agree to the supplement of acceptance period, and there is no error in the misapprehension of legal principles as to the legitimacy of the consent to establish an association, presumption of the authenticity of documents and the reversal thereof, as otherwise alleged in the ground of appeal by the defendant and the intervenor.

(D) However, it is difficult for the lower court to readily accept the determination by excluding Nonparty 7 and 6’s new written consent by the number of consenters. In light of the facts acknowledged by the lower court and the record, ① although the date of the preparation of the new written consent is not indicated, Nonparty 7’s written consent is attached as of November 19, 2008, and Nonparty 6’s written consent is presumed to have been submitted to the Defendant before the instant written consent was issued as of December 2, 2008, and Nonparty 7 and 6 appears not to have denied the validity of the new written consent. However, according to the rights list of the owners of land, etc. written on November 1, 2008, Nonparty 1 and Nonparty 6’s written consent by Nonparty 7, including the new written consent of Nonparty 7, 11, 12, 13, 14, and 15, Nonparty 208’s written consent.

(E) Therefore, the lower court’s failure to include Nonparty 7 and 6’s new written consent in the number of owners of land, etc. is erroneous. Therefore, two consenters should be added in calculating the number of owners of land, etc.

(2) Whether the number of consenters can be included in the number of consenters

(A) In an appeal litigation, the legality of an administrative disposition should be determined at the time of the administrative disposition unless there are special circumstances. However, the meaning of an administrative disposition at the time of the administrative disposition not at the market price but at the time of the administrative disposition should be determined on the basis of the law and factual condition at the time of the administrative disposition, and it does not mean that the materials existing at the time of the disposition or materials submitted to the administrative agency at the time of the disposition are not affected by the amendment or repeal of the law or change of the factual state. Thus, the proof of the factual state, etc. at the time of the disposition can be made until the time of the closing of arguments at the trial court. The court can determine the objective facts known to the administrative agency at the time of the administrative disposition and determine the illegality of the disposition based on the facts (see Supreme Court Decision 95Nu8461 delivered on November 10, 195).

(B) However, Article 28(1)5 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Presidential Decree No. 21171, Dec. 17, 2008; hereinafter “former Enforcement Decree of the Act”) provides that “any person who withdraws consent before the application for approval of the promotion committee or before the application for authorization for the establishment of the association is filed shall be excluded from the number of consenters of the owners of land, etc.: Provided, That where there is no change in the matters referred to in subparagraphs of Article 26(1), the consent of the owners of land, etc. shall not be excluded from the number of consenters for authorization of the establishment of the association.” Article 26(1) of the former Enforcement Decree of the Act provides that “The consent of the owners of land, etc. shall be based on the outline of the design of the building to be constructed (No. 1), a summary amount of expenses required for removal and construction of the building (including the allocation of expenses if the design outline of subparagraph 1 is changed).3), the consent of ownership after completion

In addition, the legislative intent of the proviso of Article 28 (1) 5 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions is to prevent economic losses caused by the failure to implement a rearrangement project by unilateral withdrawal of consent even though there is no change in the important contents of the rearrangement project at the time of application for authorization for establishment of the association, and to ensure stability in implementation of the project. Article 28 (4) of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions as amended on August 11, 2009 can either withdraw consent or express opposing opinion before applying for authorization, etc. in accordance with the former part of Article 17 (1) of the Act and Article 12 of the Act: Provided, That if the matters provided for in each subparagraph of Article 26 (2) of the Act are not changed after the consent to authorization for establishment of the association pursuant to Article 16 of the Act, the decision on the withdrawal of consent can not be withdrawn even before the application for authorization for establishment of the association is made, and in light of the time when the amendment is clearly made.

(C) According to the reasoning of the lower judgment, the lower court determined that: (a) as long as the Defendant rendered the instant disposition after recognizing the validity of the withdrawal of consent with respect to 10 persons among 13 persons, who had withdrawn consent at the time of the instant disposition, and calculated the consent rate, the said 10 persons shall be deemed not to have given consent from the beginning; and (b) the Defendant, who was the disposition authority, after the instant disposition, may not include

(D) Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and relevant statutes, even where the owner of a plot of land, etc. re-written consent withdrawal after submitting a written consent form, if it is recognized that there is no change in the matters under the subparagraphs of Article 26(1) of the former Enforcement Decree of the Act, they shall be included in the “number of consenters”. Therefore, the lower court should have deliberated on whether there was a change in the matters under the subparagraphs of Article 26(1) of the former Enforcement Decree of the Act at the time of withdrawal of the above 10 persons’ consent, and should have determined whether the above 10 persons were included in the number of consenters. Therefore, the lower court erred by failing to deliberate and determine whether there was a change in the matters under the subparagraphs of Article 26(1) of the former Enforcement Decree of the Act.

(E) Meanwhile, according to the records, Article 12(1) proviso of the articles of association of the association decided at the inaugural general meeting of the association on June 17, 2008 provides that "a contractor selected by the method of open competitive bidding before the enforcement of the Act shall be deemed a contractor selected by the articles of association by obtaining a resolution of the general meeting after authorization was granted for the establishment of the association," and Article 35(3) of the Act provides that "a tenant of a house to be removed by the implementation of the project shall supply rental housing as prescribed by the relevant City/Do municipal ordinance, or shall pay housing relocation expenses to the tenant who meets the standards under Articles 54(2) and 55(2) of the Act on Acquisition of Land for Public Works and Compensation for Loss," and the committee submitted a written petition to the Defendant that some members of the association, including the Plaintiff, were not in violation of the provisions under the proviso of Article 12(1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, but may not be deemed to have been amended by the articles of association Act.

(F) Therefore, the lower court should have determined that the number of consenters to dispose of 10 persons to whom the withdrawal of consent was made was lawful, excluding this. Therefore, in calculating the ratio of consent of the owners of land, etc., 10 persons should be added to the number of consenters.

(3) Whether the number of owners of an unauthorized building should be included in the number of owners of land, etc. and consenters

(A) Articles 2 subparag. 9(a) and 19(1) of the former Act provide that the owners or persons with superficies of the land or buildings located in the rearrangement zone shall be members of the redevelopment association. In principle, an unauthorized building should be removed in accordance with the relevant laws and regulations. However, granting the ownership of the building and allowing the ownership of the building to enjoy benefits arising from the implementation of the redevelopment project can not be permitted as a result of the illegal act’s profit. In order to smoothly implement the redevelopment project, there is no substantial need to regulate the construction of unauthorized houses indiscreetly in the rearrangement zone. If the owners of unauthorized buildings are to be construed as owners of the land, etc., under Article 2 subparag. 9(a) and Article 19(1) of the former Act, the owner of the building without permission is to establish the redevelopment committee and redevelopment association on the land of another person and to be incorporated into the redevelopment project, and thus, it is difficult to recognize the ownership of the land owner within the scope of Article 2 subparag. 9(2) of the former Act to be included in the redevelopment project’s lawful scope. 9(2).

(B) According to the reasoning of the lower judgment, the lower court found that the Intervenor’s articles of incorporation did not provide for the membership of the owner of an unauthorized building, but determined that the Defendant included six persons who own only an unauthorized building within the instant project zone in the owner of land, etc., and calculated the consent rate including five persons who agreed to establish the association, and that the said unauthorized building owners should be excluded from the number of the owners of land,

(C) Examining the reasoning of the lower judgment in light of relevant statutes and the record, the lower court’s determination that the owner of an unauthorized building should be excluded from the number of owners of land, etc. and consenters is justifiable in accordance with the legal doctrine as seen earlier. Therefore, there is no error of misapprehending the legal doctrine regarding the interpretation and application of Articles 2 subparag. 9(a) and 19(1) of the former Act.

(D) Meanwhile, according to the records, Article 9(2) of the Intervenor’s articles of incorporation provides that “The right of ownership, superficies, etc. under paragraph (1) means the right prescribed by the Civil Act: Provided, That where a building is an unauthorized building as prescribed by the Ordinance of a City/Do, which is an existing unauthorized building as prescribed by the Act, and its ownership is recognized as its members, the lower court erred by misapprehending the Intervenor’s articles of incorporation. However, in light of the aforementioned legal principles, the lower court did not err by misapprehending the Intervenor’s articles of incorporation that the proviso of Article 9(2) of the Articles of incorporation provides that the owner of an unauthorized building may be granted membership qualification to the owner of an unauthorized building by the articles of incorporation of the association after the establishment of the Housing Redevelopment and Improvement Project Association, and it cannot be deemed that the owner of an unauthorized building was included in the provisions of Article 2 subparag. 9(a) of the former Urban Improvement Act and is naturally entitled to membership. Therefore, the lower court’s error did not adversely affect the conclusion of the judgment.

(E) In addition, Articles 2 subparag. 1 and 3(2)1 of the Seoul Special Metropolitan City Ordinance on the Maintenance of Urban and Residential Environments (wholly amended by Ordinance No. 4721, Jan. 8, 2009; hereinafter “City Ordinance”) stipulate that the existing unauthorized buildings constitute old and inferior buildings within the rearrangement zone subject to the redevelopment project, but each of the above provisions is only about the rearrangement zone subject to the establishment of the rearrangement plan, and is not interpreted to be a provision on the scope of owners of lands, etc., and therefore, each of the above provisions alone does not regard the owner of an unauthorized building as the owner of land, etc. under Articles 2 subparag. 9(a) and 19(1) of the former Act. Therefore, the defendant and the Intervenor’s assertion cannot be accepted.

(4) As to whether Nonparty 1 and 2 should be included in the owners of land, etc.

According to the reasoning of the judgment below, the court below acknowledged the existence of resident registration numbers of the non-party 1 and 2 on the land cadastre of each land owned by the non-party 1 and 2 based on its adopted evidence, and rejected the defendant's assertion that the defendant's treatment of the non-party 1 and 2 as an unknown person is unlawful, and as to the defendant's assertion that the back of the resident registration numbers of the non-party 1 and 2 as indicated in the land cadastre cannot be confirmed, the back of the resident registration numbers indicated in the land cadastre is for not disclosing the resident registration numbers to the outside, and there are the back of the resident registration numbers in the competent authority managing the land cadastre, and the competent authority managing the land cadastre

In light of relevant laws and records, the judgment of the court below on this part is just, and there is no error of law such as misunderstanding of legal principles as argued in the Grounds for Appeal.

(5) As to whether the deceased non-party 3 (or non-party 4) is included in the land owner, etc.

According to the reasoning of the judgment below, the court below rejected the defendant and the intervenor's assertion that the non-party 4 and the non-party 16 who are the owners of land, etc. in the business area of this case were the same as the husband and the non-party 16 who were the owners of land in this case, and did not recognize the ownership transfer of the above land as the owners of land, etc. in this case since the non-party 4 and the non-party 16 who were the owners of land, etc. in the business area of this case were the same as the husband and the non-party 16 cannot obtain a separate right of sale according to the municipal ordinance since they were deceased on December 207, 207, which was before the disposition of this case. The court below found that the non-party 4, his father, and the non-party 1, the father, etc. of this case, completed the ownership transfer registration on July 8, 2010 due to the inheritance by agreement division on December 21, 2007.

Examining the reasoning of the judgment below in light of the relevant Acts and subordinate statutes and the records, the judgment of the court below is just and acceptable, and there is no error of law such as misapprehension of legal principles

(6) As to whether land owned by the Korea Rail Network Authority is State-owned or public land

According to the reasoning of the judgment below, the court below rejected the claim by the defendant and the intervenor that the above land owned by the Korea Rail Network Authority should be included in the owners of land, etc. at the time of the disposition of this case, since the owner of a ditch 21m2 in Dongdaemun-gu, Seoul ( Address 2 omitted) ditch based on the adopted evidence, and that the defendant should be deemed to have consented to the establishment of the association since the above land falls under state-owned or public land, the above land cannot be deemed as state-owned or public land unless the title holder on the register of the above land is specified as the Korea Rail Network Authority, and in light of related statutes, etc., the Korea Rail Network Authority has independent decision-making authority on the disposal of the property owned by it, and therefore it is difficult

Examining the reasoning of the judgment below in light of the relevant Acts and subordinate statutes and the records, the judgment of the court below is just and acceptable, and there is no error of law such as misapprehension of legal principles

C. Sub-committee

Therefore, in this case, 617 owners of lands, etc., except for 617 owners of lands, etc., excluding 6 owners of unauthorized buildings, 2 owners of lands, etc. who are excluded from the scope of whereabouts (excluding 1.2 owners of lands, etc.) and 615 owners of lands, etc., and 2 owners of lands, etc. who are excluded from the scope of whereabouts (the deceased non-party 3 or the deceased non-party 4 or his heir, Korea Rail Network Authority). From 468 persons, 5 consenters who voluntarily supplement consent forms a disturbance in design outline, etc., 470 persons who have submitted a new consent form and 10 persons who are not recognized as the revocation of consent, and 470 persons who have submitted a new consent form a 76.42% (470/615), and 76.42% (470/615) of the owners of lands, etc. who have obtained consent form an association establishment, and the court below erred in the misapprehension of legal principles as to the defendant's.

2. As to the misapprehension of legal principles as to the cure of defective administrative acts

A. Whether an administrative disposition is illegal in an administrative litigation shall be determined on the basis of the relevant statutes and factual state at the time of the administrative disposition, and it shall not be affected by the amendment or repeal of statutes or changes in the actual state after the disposition. The cure of defective administrative action is not permissible in principle from the point of view of the nature of administrative act or the rule of law. exceptional cases where an administrative act is danced and a license is granted for the sake of the legal stability of the parties should be recognized on the basis of specific circumstances to the extent that it does not infringe upon the rights and interests of the people (see Supreme Court Decision 2010Du2579, Aug. 29, 2010, etc.).

According to the reasoning of the judgment below, the court below rejected the allegation by the defendant and the intervenor that the defects of the disposition in this case were cured since the disposition in this case submitted a written consent for establishing an association from the owners of the land, etc. in this case after the disposition in this case, and the consent ratio was 78.61% due to the sale of shares by the existing association members, etc., and the defendant reached 78.61% due to the change in the number of association members, and the establishment authorization was approved on March 4, 2011, on the ground that the disposition in this case has the nature of the establishment authorization disposition in Article 16(1) of the former Act, and even if the correction of defects

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the cure of defective administrative acts, as alleged in the grounds

B. According to Article 16(1) of the former Act, when a promotion committee for a housing redevelopment project intends to establish an association, it shall obtain authorization from the head of the Si/Gun with the consent of at least 3/4 of the owners of the land, etc., and shall also obtain the approval of the association and the documents as prescribed by the Ordinance of the Ministry of Construction and Transportation. However, when it intends to modify minor matters as prescribed by the Presidential Decree, it shall be possible to report and change the name of the association and the location of the principal office and the address and name of the head of the association (title 1) with respect to the “minor matters as prescribed by the Presidential Decree” under the proviso of Article 16(1) of the former Enforcement Decree of the Act. Article 27 of the former Enforcement Decree of the Act provides that it may be amended by reporting to the head of the Si/Gun in accordance with the change of the association members or new joining (title 2), the improvement zone or the rearrangement plan under Article 4 of the Act (title 3), and other matters as prescribed by the Ordinance of the Si/Do.

Meanwhile, an administrative agency’s disposition of approving the establishment of a redevelopment association is a kind of authoritative disposition that grants a status as an administrative body to a housing redevelopment project promotion committee (see Supreme Court Decision 2009Da30427, Oct. 15, 2009). Article 16(1) of the Urban Improvement Act requires that the same requirement and procedure as the disposition of approving the establishment of an association should be met when changing the contents of the authorization (see Supreme Court Decision 2009Da30427, Oct. 15, 2009). However, even if an administrative agency issued a disposition of changing minor matters under each subparagraph of Article 27 of the former Enforcement Decree of the Urban Improvement Act, which does not require the same requirement and procedure as the disposition of approving the establishment of an association, it should be deemed that the nature is nothing more than accepting a report of changing insignificant matters, separate from the original disposition of approving the establishment of an association (see Supreme Court Decision 205Du5594, Dec. 25, 2010).

According to the records, the modification of the authorization of this case is a disposition based on the change of the number of association members due to the purchase and sale, donation, inheritance, adjustment, etc. of shares of existing association members, and the modification of the consent rate based on the submission of additional written consent without any change in the other part of the original authorized matters. It is merely the meaning of accepting the report of modification of minor matters under Article 27 subparagraph 2 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions. Therefore, although the court below did not decide on the assertion that the establishment authorization of this case was absorbed, it did not affect the conclusion of the judgment, the defendant and the intervenor's ground of appeal on this part cannot be accepted.

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Appointeds: Omitted

Justices Lee In-bok (Presiding Justice)