The defendant shall pay to the plaintiff 8,878,285 won with 5% interest per annum from March 6, 2010 to June 17, 201, and 20% interest per annum from the next day to the day of full payment.

2. The defendant's remaining appeal is dismissed.

3. 9/10 of the total litigation costs is assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

The defendant shall pay to the plaintiff 231,756,340 won with 20% interest per annum from March 6, 2010 to the day of complete payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

The reasoning for this part of the judgment of the court is the same as that of the corresponding part of the judgment of the court of first instance, and thus, it is cited in accordance with the main sentence of Article 420 of the Civil Procedure

2. The parties' assertion

A. The plaintiff's assertion

(1) Of the Defendant’s damages claims in lieu of the defect repair of the apartment of this case against the Plaintiff, 22,878,05 won in aggregate, of the damages claims in lieu of the defect repair in the year 1,2,3,50 of the pre-use inspection and the damages claims in lieu of the defect repair in the apartment of this case, 5 years have already elapsed since the starting point of each of

(2) Of the litigation costs incurred by the Defendant in the above lawsuit with the council of occupants' representatives, the sum of 8,878,285 won, such as consulting costs related to appraisal, appraisal documents, and contingent fees to the attorney-at-law (hereinafter "consulting costs, etc.") cannot be deemed as losses in proximate causal relation with the Plaintiff's nonperformance of obligations under the contract of this case. Thus, it cannot be claimed to the Plaintiff as compensation for damages due to special circumstances not known to the Plaintiff.

B. Defendant’s assertion

(1) If there is any defect in the object completed by the contractor, the contractor shall be liable for the defect liability under Article 667 of the Civil Act. This is a statutory strict liability. The right to claim damages in lieu of the defect repair of the contractor based on the defect liability of the contractor is subject to the ten-year extinctive prescription under the Civil Act. However, from April 27, 199 to May 14, 2007, the Defendant has continuously demanded the Plaintiff to repair the defect in the apartment of this case. On January 7, 2008, the Plaintiff was notified of the lawsuit on which the council of occupants’ representatives has pending a lawsuit for damages compensation in lieu of the defect repair that the contractor raised to the Defendant. Since the lawsuit became final and conclusive on October 29, 209, the above lawsuit was suspended by the period of extinctive prescription until October 29, 209.

(2) Total amounting to KRW 8,878,285, such as consulting costs, is the cost spent in the above litigation between the defendant and the council of occupants' representatives, and the damage incurred to the defendant due to the failure of the plaintiff to fully perform the obligation under the instant contract, which constitutes a damage in proximate causal relation with the

3. Determination

A. Part of the right to claim damages in lieu of defect repairs

(1) As seen earlier, the instant contract was concluded on September 28, 1994, before the Framework Act on the Construction Industry enters into force ( July 1, 1997), and the relationship between the Plaintiff and the Defendant is not the relationship between the ordering person and the contractor under the Framework Act on the Construction Industry, but the relationship between the contractor and the contractor under the Civil Act. If there is any defect in the object completed by the contractor, the contractor shall be liable for the replacement of the defect repair among the liability for defect liability under the statutory strict liability, regardless of its negligence, pursuant to the provisions of Article 667 of the Civil Act, regardless of the contractor's negligence. If there is a cause attributable to the contractor, the contractor shall be liable for the damages incurred to the contractor due to the failure of the contractor to perform the obligation under the terms of the said contract beyond the above liability for defect repair, and both are recognized by a separate title (see Supreme Court Decision 2001Da70337, Aug. 20, 204).

(2) Regarding the instant case, among the damages claims for the defect repair of the Defendant against the Plaintiff, the total amount of KRW 22,878,05 of the damages claims for the defect repair in lieu of the pre-use inspection, 1,2,3,55 of the damages claims for the defect repair in lieu of the pre-use inspection, 22,878,05 shall be deemed as part of the damages claims for the defect repair in lieu of the Plaintiff's defect repair liability, among the damages claims for the defect repair in the instant apartment due to the error in construction, due to the Plaintiff's fault. The Defendant may make a claim for damages for the defect repair in lieu of the defect repair among the defect warranty liability under Article 667 of the Civil Act, which is a statutory strict liability under the contract of this case, to the Plaintiff from the 10th anniversary of the expiration of the period of the above defect repair in lieu of the Plaintiff's non-performance under the contract of this case. However, the extinctive prescription period of the Defendant's damages claims for the defect repair in lieu of the defect repair liability of this case from 170 years to the judgment.

(3) Ultimately, the Plaintiff’s assertion on the premise that the five-year commercial extinctive prescription is applicable to the damages claim in lieu of the defect repair of the apartment of this case against the Defendant based on the contractor’s warranty liability under the Civil Act, as well as the damages claim in lieu of the defect repair of the 1,2,3, and 5 years old apartment of this case, is without merit.

B. Part of the right to claim damages, such as consulting expenses

(1) As such, it is difficult to view that the Defendant’s fee, stamp, service fee, etc., which is the litigation cost ordinarily incurred in the above lawsuit with the council of occupants’ representatives, is different from that of the Plaintiff’s council of occupants’ representatives, and there is no evidence to prove that there is a proximate causal relation with the Plaintiff’s nonperformance of obligations under the instant contract, and otherwise, the Plaintiff and the Defendant have anticipated that the consulting cost, etc. would have been incurred as a matter of course from the Plaintiff’s nonperformance of obligations in general and objective terms. Therefore, damages, such as consulting cost, etc. should be deemed as special damages. In this case where there is no evidence by the Defendant that there is no proof that the Plaintiff knew or could have known of special circumstances, the right to claim damages equivalent to the consulting cost, etc., from the Defendant without any legal ground. Accordingly, the Defendant gains from receiving monetary amount equivalent to the consulting cost, etc

(2) Ultimately, the Defendant is obligated to pay damages for delay at a rate of 20% per annum under the Civil Act from March 6, 2010 to June 17, 201 (the obligation to return unjust enrichment owed by the Defendant to the Plaintiff is a legal obligation arising from commercial activities, and shall not be deemed as a obligation arising from commercial activities), which is clearly considered reasonable for the Defendant to dispute as to the existence or scope of the obligation to pay the Plaintiff a total of 8,878,285 won, including consulting costs, and the following day after the copy of the complaint of this case, from March 6, 2010 to the day following the date on which the Defendant delivered a copy of the complaint of this case to the Defendant.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claims are dismissed for lack of merit. Since the part against the defendant who ordered payment in excess of the above recognized amount among the judgment of the court of first instance is unfair, it is so unfair, and it is revoked, and the plaintiff's claim corresponding to the revoked part is dismissed, and the defendant's remaining appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Yong-maid (Presiding Judge)