[2] Notwithstanding the period of defect repair liability under Article 11(1) [Attachment 3] of the former Rules on the Management of Multi-Family Housing, whether it can be deemed that the project owner and the claimant for defect repair agree to extend the period of liability for all defects to three years solely on the ground that the project owner submitted to the authority for the inspection of defect repair and the warranty period of three years (negative)

[3] Whether "the expiration date of the guarantee period" under Article 39(3) of the former Construction Mutual Aid Association Act, which is a provision for the extinctive prescription of the security deposit for repairing defects, refers to the expiration date of the warranty liability period under Article 11(1) [Attachment 3] of the former Rules on Management of Multi-Family Housing (affirmative)

[4] In a case where the council of occupants' representatives of a multi-family housing exercises a right to claim the repair of defects, whether the council shall specify all the defects that occurred in the multi-family housing and

[5] The meaning of "defects that occurred before the use inspection," which were not subject to guarantee under the terms and conditions of warranty against defects, and the meaning of "defects that occurred before the use inspection," and whether it constitutes "defects that occurred before the use inspection," even in cases where any defect in the function, aesthetic or safety of the housing was discovered after the use inspection (negative)

[6] Legal nature of the council of occupants' representatives of collective housing organized under the former Housing Construction Promotion Act and the former Decree on the Management of Collective Housing (=a non-corporate association) and the method of management and disposal of the right of defect repair claims

[7] Where a defect in the columns, bearing walls, beams, floors, or roof of multi-family housing constitutes a defect in major facilities prescribed by the former Housing Construction Promotion Act, whether the defect may constitute a defect in the portions of proof-proof structures at the same time (affirmative)

1. The part of the claim based on the first guarantee certificate of this case

A. As to the Defendant’s grounds of appeal (the supplementary appellate brief to the extent of supplement)

(1) As to ground of appeal No. 1

(A) Article 38(14) of the former Housing Construction Promotion Act provides that "the project owner shall be liable to repair defects of multi-family housing under the conditions as prescribed by the Presidential Decree." Article 16(1) of the former Decree on the Management of Multi-family Housing provides that "The period of repairing defects of multi-family housing shall not be less than two years for major facilities from the date of the usage inspection, and not less than one year for other facilities." Article 11(1) of the former Rules on the Management of Multi-Family Housing (amended by the Ordinance No. 567 of Nov. 2, 1994) provides that "the period of repairing defects of multi-family housing shall be determined by the Ordinance on the Management of Multi-Family Housing," and Article 16(1) of the former Decree on the Management of Multi-Family Housing provides that "the period of repairing defects of multi-family housing shall be determined by the Ordinance on the Management of Multi-Family Housing, such as the classification of facilities subject to defect repair and the scope of defect repair works and the period of defect repair liability [Attachment 3].

Furthermore, Article 38(15) of the former Housing Construction Promotion Act provides that "the project undertaker and the owner under paragraph (14) shall deposit the warranty bond under the conditions as prescribed by the Presidential Decree." Article 17(1) of the former Decree on the Management of Multi-Family Housing provides that "any person who constructs and supplies multi-family housing, etc. shall deposit the warranty bond in the name of the authority for usage inspection with the financial institution designated by the authority for usage inspection and submit the certificate of deposit to the authority for usage inspection." Paragraph (4) of the same Article provides that "The warranty bond under paragraph (1) shall be paid in cash or in payment guarantee by the bank, the council of occupants' representatives or the person entrusted by the said authority, the warranty bond issued by the construction mutual-aid association under the Construction Mutual-Aid Association Act, the warranty bond issued by the construction mutual-aid association under Article 47-6 of the Housing Construction Promotion Act, even if the project undertaker has been granted the warranty bond or the warranty bond issued by the construction mutual-aid association under the above provision for each of the warranty period and the warranty period within 3 years prescribed in attached Table 9.

Meanwhile, notwithstanding the period of defect repair liability stipulated in Article 11(1) [Attachment 3] of the former Rules on Management of Multi-Family Housing, the project undertaker does not prohibit him/her from fixing the period of defect repair liability for a longer period than the said period. However, just because the project undertaker submitted an application for the usage inspection to the authority for usage inspection and submitted it to the construction mutual-aid association with the documents required therefor, he/she shall not be deemed to have agreed to extend the period of the defect repair liability for all defects to three years, regardless of the period of the short-term defect repair liability stipulated in Article 11(1) [Attachment 3] of the former Rules on Management of Multi-Family Housing.

(B) According to the records, the non-party 1 corporation (hereinafter referred to as "non-party 1 corporation") who is a business entity which has implemented the construction project of this case was issued a warranty bond under the name of the defendant 1,241,94,220 won, the warranty bond under the former Housing Construction Promotion Act and the former Decree for the purpose of performing the obligation to deposit the warranty bond under the old Housing Construction Promotion Act and the former Decree for the management of apartment units on October 28, 1994 (hereinafter referred to as "non-party 1 corporation") with the warranty bond under the term from October 29, 1994 to October 28, 197 (the first warranty bond of this case). The first warranty bond of this case was issued to the non-party 1,246 (1) of the former Decree on the Management of Apartment Houses, and Article 11 (1) [Attachment 3] of the former Rules on the Management of Apartment Houses, and the Mayor of the non-party 1, the warranty bond of this case, which was changed within the warranty warranty bond of this case.

In light of the above legal principles, the defendant guaranteed the liability for defect repair to the plaintiff by the non-party 1 company under the former Housing Construction Promotion Act and the former Decree on the Management of Multi-Family Housing, and the defect repair liability period of the non-party 1 company is limited to one year, two years, and three years from the date of usage inspection according to each of the detailed items as stipulated in Article 11 (1) [Attachment 3] of the former Rules on the Management of Multi-Family Housing. Thus, the defect subject to the defendant's guarantee is limited to one year, two years, and three years from the date of usage inspection, and the defect that occurred after the expiration of the period is limited to one year, two years from the date of usage inspection, and three years from

(C) Article 39(3) of the former Construction Mutual Aid Association Act (amended by Act No. 4922 of Jan. 5, 1995) provides that "a guarantee creditor's right to a guarantee against a cooperative shall expire by prescription if he/she fails to exercise his/her right to a guarantee against the cooperative for five years from the expiration date of the guarantee period," and although the guarantee period of the first guarantee of this case is three years, only the repair of defects arising within the warranty period stipulated in Article 11(1) [Attachment 3] of the former Multi-Family Housing Management Rules shall be subject to guarantee, as seen earlier. Therefore, the expiration date of the guarantee period stipulated in the above provision shall be interpreted to the same meaning as the expiration date of the defect repair liability period stipulated in Article 11(1) [Attachment 3] of the former

However, Article 11 (1) [Attachment 3] of the former Rules on the Management of Multi-Family Housing among the defects of which the relevant remuneration is guaranteed by the first guarantee letter of this case, the period of liability for repairing defects, the period of liability for repairing defects of which is one year, shall be deemed to have terminated on October 28, 1995 when one year has elapsed from October 29, 194, which was the date of inspection of the use of the apartment of this case, and therefore, the claim for the warranty bond has expired on October 28, 2000 after five years have elapsed from the date of inspection of the use of the apartment of this case.

(D) Notwithstanding the agreement between the plaintiff and the non-party 1 on the completion of repair of defects on October 23, 1997 and the confirmation of the plaintiff's completion of repair of defects on December 30, 1997, the non-party 1's repair liability has not been exempted or terminated, as it falls under Article 11 (1) [Attachment Table 3] paragraph (9) of the former Rules on Management of Multi-Family Housing, the term of its repair liability is three years, but each household's side wall and outer wall heating, each 16th or upper floor's apartment construction, the non-party 1's poor repair liability and the defect repair liability of the non-party 1's company due to the lack of the thickness of the underground parking lot and underground shelter's second floor falls under Article 11 (1) [Attachment Table 3] paragraph (1) [Attachment Table 3] of the above [Attachment Table 3], and all of the poor repair liability and the defect repair effect due to the defect repair of the front floor part of the apartment or the defect construction of the construction works.

Nevertheless, the court below rejected the defendant's defense on the ground that the defendant issued the first guarantee certificate of this case with the warranty period of three years, which is set forth in Article 11 (1) [Attachment 3] of the former Rules on the Management of Multi-Family Housing for three years, regardless of the distinction between the warranty period and the defect liability period of one year, two years, and three years, and the non-party 1 entered the warranty period of the above guarantee certificate with the warranty period of three years and submitted it to the authority for inspection within three years, and agreed to bear the warranty liability if the defects arising from the new construction of the apartment of this case occur within three years, and the lawsuit of this case was filed on October 28, 1997 before the expiration of the warranty period of the first guarantee certificate of this case. In so doing, the court below erred by misapprehending the legal principles as to the defect liability period of the former Housing Construction Promotion Act and the Decree on the Management of Multi-Family Housing for three years, which affected the conclusion of the judgment.

(2) Regarding ground of appeal No. 2

Since the council of occupants' representatives is not an expert on construction, it is unreasonable to specify all defects that have occurred in multi-family housing and to request the business entity to exercise the right to request repair of defects by clarifying the detailed contents thereof. Therefore, if the council of occupants' representatives pointed out the general defects that have already occurred and requests the measures, it shall be deemed that the comprehensive exercise of the right for each defect has been

In the same purport, the court below is just in rejecting the defendant's assertion that the plaintiff cannot pay the remuneration deposit for the non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's demand for the remuneration, and there is no error in the misapprehension of legal principles as to the interpretation of the terms and conditions, which affected the conclusion of the judgment. Therefore, the defendant

(3) As to the third ground for appeal

(A) According to the reasoning of the judgment below, the court below recognized that the non-party 1 company that newly constructed the apartment of this case did not inform the plaintiff of the fact that the defects occurred in the function of the apartment of this case as stated in the judgment below without notifying the plaintiff of the fact. In light of the records, the above fact-finding of the court below is justified and it is not erroneous in the misapprehension of the rules of evidence as otherwise alleged in the ground of appeal.

(B) In full view of the provisions of Article 16(1) of the former Decree on the Management of Multi-Family Housing and the contents of the present terms of the defect repair contract, the defect subject to the defendant's warranty is limited to the defect that occurred before the expiration of the period of defect repair liability after the date of the inspection, and the defect that had already occurred before the completion of the inspection shall not be subject to guarantee by the defendant even though it continues to exist after the date of the inspection. The defect that had already occurred before the inspection of the use is not a construction company's construction work under the design drawings or the defect that had already occurred before the inspection of the use due to the defect that had already occurred before the inspection of the construction work, such as the defective construction or the alteration of the design drawings, etc., such defect does not constitute a defect that had already occurred before the inspection of the use.

In the same purport, the court below determined that the defect in waterproof due to the lack of waterproof thickness of the underground parking lot and underground shelter, among the defect in the apartment of this case, was the object of the defendant's guarantee after recognizing that the defect in the above function had already been caused before the commencement of the inspection for use due to the non-party 1's failure to construct the part to be constructed in accordance with the design drawing or the defective construction, but the defect in its operation or function had already been caused before the expiration of the defect repair liability period after the inspection for use, and therefore, it did not err in the misapprehension of legal principles as to the scope of the defect that is the object of the defect warranty liability, or in the misapprehension of facts against the rules of evidence.

B. Plaintiff’s ground of appeal

(1) Regarding ground of appeal No. 2

(A) According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning after compiling the adopted evidence. The plaintiff agreed on October 23, 1997 between the non-party 1 and the non-party 1 on the completion of the repair of defects within three years, among the defects that occurred in the apartment of this case sold by the non-party 1, and agreed on the termination of the repair of defects within three years, and the non-party 1's repair of defects within the period of the defect liability was terminated and the non-party 1 did not request the additional repair of defects. Upon the completion of the agreed defect repair as mentioned above, the court below rejected the above agreement as invalid on the ground that the construction defects in the apartment of this case occurred within three years and the defect liability period of the defect repair was within three years, and it did not constitute a juristic act in violation of the good social order or the non-party 1 did not notify the plaintiff of the fact that the above agreement was invalid.

In light of the records, the above fact-finding and judgment of the court below are all justified, and there is no illegality of misconception of facts against the rules of evidence as alleged in the grounds of appeal.

(B) The council of occupants' representatives established under the former Housing Construction Promotion Act (amended by Act No. 4919 of Jan. 5, 1995) and the former Decree on the Management of Multi-Family Housing (amended by Presidential Decree No. 14447 of Dec. 13, 1994) shall be deemed an unincorporated association (Supreme Court Decision 91Da478 of Apr. 23, 1991). Thus, the right to claim repair of defects against the project undertaker by the council of occupants' representatives shall be deemed to be the property right belonging to the quasi-total amount of the members of the council of occupants' representatives. Accordingly, in order for the council of occupants' representatives to manage and dispose of the right to claim repair of defects against the project undertaker, a resolution by the council of occupants' representatives shall be adopted in accordance with the articles of association or by other regulations of the council

Examining the records in light of the above legal principles, the repair and improvement of the part for common use by the plaintiff 1 was determined as the resolution of the council of occupants' representatives. The non-party 2, the non-party 3, 4, and 5 who was the chairperson of the plaintiff as of June 19, 196, and the non-party 1's person in charge of the non-party 1 as of the non-party 3, the non-party 3, the non-party 4, and the non-party 5 who were members of the council, agreed on the repair of the part for common use and the part for exclusive use, 7, and 2, the defects of the apartment of this case as of the non-party 1 as of the non-party 9's defect repair decision. The non-party 1 and the non-party 1 company agreed on the defect repair of the non-party 1 as of October 23, 1997 and agreed on the defect repair confirmation by the plaintiff 1 and the non-party 1 company's representative.

(2) As to ground of appeal No. 1

According to the reasoning of the judgment below, despite the agreement between the plaintiff and the non-party 1 on the completion of defect repair as of October 23, 1997 and the plaintiff's completion of defect repair as of December 30, 1997, the court below acknowledged the defects of non-party 1's repair liability or non-party 1's repair completion due to lack of the thickness of the underground parking lots and underground shelters, the defective construction of each household's side walls and outer walls, the poor construction of the upper part of each household's upper part of the 16th and upper apartment, the poor construction of the 14th and the upper part of each household's upper part of the apartment apartment, the poor construction of the 15th and upper apartment, and the poor construction of private dancing in each household, etc., the court below determined that the non-party 1's repair liability was not exempted or terminated due to the non-party 1's defect in construction, according to the result of the first instance's appraisal, etc., the amount of the above 16th and the damages claim.

However, according to the result of the first instance court's appraisal employed by the court below, since the costs necessary for repairing the above defects are 18,728,611 won for direct labor costs, 147,812,120 won for direct labor costs, 21,920,537 won for industrial accident compensation insurance, 5,770,910 won for other expenses, 3,014, general management costs, 11,263,175 won for general management costs, 297, 936 won for profit 29,564,612 won for damages, 270,210,738 won for direct labor costs, and 160,000 won for direct labor costs and indirect labor costs, 70,000 won for industrial accident compensation insurance costs, and 37,000,000 won for direct labor costs and indirect labor costs for damages, the court below did not err in calculating the above amount by 70,0700,000

C. Sub-committee

Ultimately, pursuant to the letter of first guarantee of this case, the defendant is obligated to pay the plaintiff 270,210,738 won of waterproof repair costs due to the lack of the thickness of the underground parking lot and underground shelter, and to pay the plaintiff 270,210,738 won after the due date, and to the day following the delivery date of the copy of the complaint of this case, as requested by the plaintiff, from December 22, 2000 to May 31, 2003 [the period for which the defendant deems it reasonable to dispute about the existence and scope of the obligation to perform shall be from November 14, 2002, which is the date of the original judgment, to November 14, 2002, but the period from the day following the date of the original judgment to May 31, 2003, which is the day before the amendment Act enters into force, to pay 5% of the annual interest rate from the day after the date of the original judgment to May 31, 2003].

Therefore, the part of the judgment below ordering payment in excess of the above-mentioned money out of the part concerning the claim based on the first guarantee letter of this case is unfair, and thus, it shall be reversed. Since this case is sufficient for the court to directly render a judgment, it shall be decided to see in accordance with Article 437 subparagraph 1 of the Civil Procedure Act. Therefore, the plaintiff's appeal corresponding

2. The part of the claim based on the second guarantee document of this case

A. As to the Defendant’s fourth ground of appeal

Article 38 (14) of the former Housing Construction Promotion Act provides that "the project owner and the project owner under the provisions of paragraph (14) of the same Article shall be liable to repair defects of multi-family housing as prescribed by Presidential Decree." Article 38 (16) of the same Act provides that "the project owner and the project owner under the provisions of paragraph (14) of the same Article shall, when serious defects have occurred in the portions of proof-stress structure of multi-family housing, be liable to repair them and compensate for the damages therefrom, and in this case the period of defect repair by structure and the scope of defects shall be prescribed by Presidential Decree." Article 16 (1) of the former Decree on the Management of Multi-family Housing provides that "the period of defect repair for multi-family housing shall be two years or more from the date of usage inspection, and the period of classification and scope of other facilities shall be determined by the Ordinance of the Ministry of Construction and Transportation." Article 11 (1) [Attachment 3] of the former Rules on the Management of Multi-Family Housing shall be 10 years or more of steel structure, and its main structure, 2 years of steel.

In full view of the above provisions, the defects in the portions of proof-stress structure under Article 38(16) of the former Housing Construction Promotion Act, Article 16(14) of the former Decree on the Management of Multi-Family Housing, Article 16(1) of the former Decree on the Management of Multi-Family Housing, and Article 11(1) [Attachment 3] of the former Rules on the Management of Multi-Family Housing do not exclude the defects in major facilities and other facilities. Thus, the defects in columns, bearing walls, beams, floors, and roof of multi-family housing may constitute defects in major facilities whose period of liability for defect repair is less than 3 years, and may constitute defects in the portions of proof-stress structure whose period of liability for defect repair is 10 years or 5 years. Accordingly, if the defects in the portions of proof-stress structure are found, even if they are guaranteed by the first guarantee certificate of this case, they shall not be excluded from the objects of guarantee in the second guarantee certificate of this case.

The court below, based on the adopted evidence, found that the apartment building of this case was ruptured on each inside and outside walls of this case, and that rupture occurred in the underground parking lot beams, etc., and determined that each of the above defects is a serious defect in the fireproof structure of the apartment of this case and is subject to the guarantee of the second guarantee certificate of this case. In light of the above legal principles, the judgment of the court below is just, and it is not erroneous in the misapprehension of legal principles as to the scope of defects in the fireproof structure, or in the misconception of facts against the rules of evidence, which affected the conclusion of the judgment

B. As to the Defendant’s fifth ground of appeal

According to the reasoning of the judgment below, the court below, based on the adopted evidence, found the plaintiff's claim for the repair of defects caused by the proof structure as above to the non-party 1 company, but the non-party 1 company rejected the repair of defects on the ground that the above defects do not constitute a serious defect to the collapse of the apartment of this case. In light of the records, the above fact finding by the court below is just and it is not erroneous in the misconception of facts against the rules of evidence as otherwise alleged in the ground of appeal. Therefore,

C. Determination on damages for delay

Article 3(1) of the former Act on Special Cases Concerning Expedition, etc. of Legal Proceedings (amended by Act No. 6868 of May 10, 2003) provides that the portion of "interest rate prescribed by Presidential Decree" in the main sentence of Article 3(1) of the same Act shall be determined as unconstitutional on April 24, 2003. The amended Act and the main sentence of Article 3(1) of the former Act on Special Cases Concerning Expedition, etc. of Legal Proceedings (amended by Presidential Decree No. 17981 of May 29, 2003) provides that the statutory interest rate applicable to cases pending before the court at the time of the enforcement of the above Act shall be 20% per annum, which affected the conclusion of the judgment by applying the above amended Act to the interest rate of 5% per annum from May 31, 2003 before the enforcement of the above amended Act, and damages for delay shall be paid at the rate of 20% per annum 50% per annum and damages for delay from 20.

D. Sub-committee

Therefore, among the part against the defendant as to delay damages for the part of the claim based on the second guarantee letter of this case, the part which exceeds 5% per annum from December 22, 2000 to May 31, 2003, and 20% per annum from the next day to the day of complete payment, with respect to 310,486,060 won, which is the cited amount in the first instance judgment, and the part which exceeds 310,486,060 won per annum from the end of May 31, 200 to the day of full payment, shall be reversed. However, in this case, it is sufficient to

The defendant is obligated to pay to the plaintiff 310,486,060 won with 5% per annum from December 22, 200 to May 31, 2003, and 20% per annum from the next day to the day of full payment. Thus, the plaintiff's claim is accepted within the above scope of recognition, and the remainder claim is dismissed as there is no reason. Since the judgment of the court of first instance is partially unfair, the judgment of the court of first instance corresponding to the part exceeding the above limit of recognition is revoked, and the plaintiff's claim corresponding to that part is dismissed.

3. Conclusion

As above, the plaintiff's appeal as to this case and the defendant's remaining appeal are dismissed. The total costs of the lawsuit are five minutes and three minutes are assessed against the plaintiff and the remainder are assessed against the defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Ill-sook (Presiding Justice)