(영문) 대법원 2015.10.29.선고 2012다23764 판결

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채무부존재확인손해배상(기)

Cases

2012Da23764, Confirmation of the existence of an obligation

2012Da23771 (Counterclaim) damages

Plaintiff (Counterclaim Defendant) Final Appeal

person

CN Co., Ltd., the taking over of the lawsuit

Defendant (Counterclaim Plaintiff) Appellee

It is as shown in the attached list of the Defendant (Counterclaim Plaintiff).

The judgment below

Daegu High Court Decision 2011Na765 (Main Office), 2011Na772 decided January 27, 2012

[Lawsuit] Judgment

Imposition of Judgment

October 29, 2015

Text

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

Reasons

The grounds of appeal are examined.

1. In relation to the warranty liability of a person who constructed and sold an apartment building for the warranty against defects in a building, the term “defect” means that a building generally completed has structural and functional defects different from the contents of the construction contract, or does not have good quality in terms of trade norms. The determination of defects ought to be made by comprehensively taking into account various circumstances, including the content of the contract between the parties concerned, whether the building was constructed in conformity with the design design, and whether the building meets the standards prescribed in the construction-related statutes (see, e.g., Supreme Court Decisions 2008Da16851, Dec. 9, 2010; 2010Da108272, May 9, 2013).

On the other hand, Article 14(3) of the Regulations on Housing Construction Standards, etc. before the amendment by Presidential Decree No. 17972 of Apr. 22, 2003 with respect to the regulation on floor soundproof noise of multi-family housing (hereinafter “former Regulations”) provides that the floor of multi-family housing shall be built in such a way that the floor level of multi-family housing can sufficiently block the floor soundproof level between each floor. However, Article 14(3) of the Regulations on Housing Construction Standards, etc. as amended on April 22, 2003 (hereinafter “amended Regulations”), Article 14(3) of the same Act provides that the floor level of multi-family housing means the floor soundproof noise level between each floor (referring to the floor soundproof level by an irregular and solid shocking shock) is to be less than 58 cubic meterss (dB) and 50 square meters (referring to the floor soundproof impact level by a luc and non-flucing noise level).

However, in determining "a structure that can sufficiently cut off floor soundproofs between different floors" as referred to in the preceding provision before the amendment, the provisions on light shocks in the proviso of Article 1 of the Addenda to the amended provisions shall enter into force one year after the promulgation, and the provisions on light shocks in the proviso of Article 14 shall enter into force on July 1, 2005, and Article 14 shall enter into force on July 1, 2005. Article 2 of the Addenda provides that the amended provisions in Article 14 shall apply from the housing construction project for which an application for approval of a project plan is filed pursuant to Article 33 of the Housing Construction Promotion Act after the enforcement of the same provision, clearly state the applicable time of the amended provisions, and the regulations on housing construction standards, etc. as amended by Presidential Decree No. 18929 on June 30, 200, which are the same as the amended provisions in the Act or the regulations that are applied before the implementation of the amended provisions or approval of the construction.

Therefore, in determining whether the floor impact of an apartment building that obtained business approval prior to the enforcement of the amended provision, the amended provision can only serve as a ground for consideration, and cannot be determined only by the amended provision. In addition, the amended provision should comprehensively take into account various circumstances, such as the current status of the construction at the time of construction of the apartment building that obtained business approval prior to the enforcement of the amended provision, the level of floor impact, the level of technology at the time of construction, and the developments leading up to the establishment of the standards for the amended provision (see Supreme Court Decision 2005Da56193, 56209, Jun. 26, 2008).

2. The court below accepted the judgment of the first instance, and constructed and sold the apartment of this case with approval of the business for the apartment of 200, 200, 29, 29, 29, 2000, 12.29, 200, 200, 200, 29, 200, 200, 200, 200, 200, 200, 200, 300,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,000).

3. However, it is difficult to accept such a determination by the lower court for the following reasons.

A. Since the instant apartment was already approved on December 29, 200, the provisions on floor soundproof noise under the amended provisions do not directly apply to the apartment of this case.

In addition, in light of the following circumstances acknowledged by the reasoning of the lower judgment and the evidence duly adopted, ① there was no specific standard for floor shocking noise generated from multi-family housing; ② it is difficult to view that there was no shocking materials or buffer materials to be installed on the apartment floor of this case; ② The apartment floor of this case was designed and constructed with the thickness of 245mm, including concrete slabs, 70mm, and 40m of cement tar. It was difficult to determine that there was a high-level level of 5m high-level standard for construction of apartment-family housing (hereinafter referred to as the “establishment of standard”) based on the 5m high-level level of 4m high-level level of construction of apartment-family housing, and there was no high-level 5m high-level construction of apartment-family housing (hereinafter referred to as 120m high-level research for apartment-level construction). It was difficult to determine that there was a high-level 5m high-level level of construction of apartment-family housing based on the 5m high-level of construction.

B. Nevertheless, without sufficiently considering the various circumstances as seen earlier, the lower court recognized the defects of the apartment floor of this case on the sole basis of the circumstances as indicated in its reasoning and recognized the Plaintiff as liability for damages equivalent to the construction cost of tea. In so doing, the lower court erred by misapprehending the legal doctrine on whether to recognize the defects of the floor noise level or the noise level, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Judges

Justices Park Sang-ok

Justices Lee Sang-hoon

Justices Kim Chang-tae, Counsel for the defendant

Justices Cho Jong-hee

Attached Form

A person shall be appointed.

심급 사건

-대구고등법원 2012.1.27.선고 2011나765

-대법원 2015.10.29.선고 2012다23764

참조조문

-주택건설기준 등에 관한 규정

-주택건설기준 등에 관한 규정 제14조 제3항

-주택건설촉진법 제33조

참조판례

-대법원 2010. 12. 9. 선고 2008다16851 판결