[전부금][집22(2)민,117;공1974.9.15.(496) 7982]
Whether the contractor may separately claim the amount of the repair cost to the contractor without deduction from the defect deposit where the contractor has kept the defect bond from the contractor and the contractor has found the defect after the completion inspection of the construction work.
If the contractor has kept the warranty bond from the contractor under the contract for construction works, the contractor who received the warranty bond after the completion inspection of construction works is found, unless there are special circumstances, shall pay the repair cost from among the warranty bond in his/her custody, and may not claim the amount equivalent to the repair cost separately from the warranty bond.
Article 667 of the Civil Act
[Judgment of the court below]
[Defendant-Appellee] Defendant 1
Seoul High Court Decision 73Na1137 delivered on November 28, 1973
The appeal is dismissed.
The costs of appeal shall be borne by the defendant.
The defendant's attorney's grounds of appeal are examined.
On the first ground for appeal
According to the facts duly admitted by the court below, among the contract for the construction work of this case entered into between the defendant who is the contractor and the non-party who is the contractor, the contractor shall pay 3 percent of the amount of the construction work to the contractor as defect security deposit for two years from the date of completion inspection, and accordingly, the defect security deposit to be kept by the above non-party is KRW 1,378,128, and the non-party shall have paid KRW 783,030 to the defendant for the repair of the defect security deposit after the completion inspection of the construction work of this case. In this case, the defendant without special circumstances should pay KRW 783,030,030 of the defect security deposit in custody of the above non-party (i.e., offsetting the above expenses from the defect security deposit obligation against the above non-party) and the defect security deposit cannot be immediately claimed against the above non-party separately from the defect security deposit. Thus, the court below's judgment is justified and there is no error in the misapprehension of legal principles as to the defect security deposit.
With respect to the second ground:
In comparison with the fact-finding of the lower court, the lower court did not err by failing to exhaust all necessary deliberations or by misapprehending the rules of evidence. Ultimately, the appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Cho Young-young (Presiding Justice)