[하자보수비][공1999.11.1.(93),2196]
[1] Whether Article 672 of the Civil Code shall apply mutatis mutandis to cases where a contractor agrees to restrict a contractor's liability for warranty under the law, such as shortening the contractor's liability for warranty (affirmative with qualification)
[2] The case holding that the contractor's warranty liability is not exempted solely on the ground that the contract warranty period has expired unless the contractor knew of the defects in the construction and did not notify the contractor of the defects in the contract, in case where the contractor's construction of the upper part of the apartment roof drainage system for the newly constructed apartment roof, which is to be constructed in the PC board on the design drawing, was caused by a loss caused by a joint plate corrosion after two years have elapsed since the contract defect warranty period was agreed
[1] The purport of Article 672 of the Civil Code that Article 672 of the Act provides that a contractor shall not be exempt from liability for any fact that he did not know even if he/she agreed that he/she had no liability for warranty. In such a case, the exemption of liability for warranty is contrary to the principle of good faith. Thus, even if the contractor made an agreement to exempt liability for warranty as well as an agreement to restrict liability for warranty as stipulated in law by shortening the period of liability for warranty, if it violates the principle of good faith to limit liability for the fact that the contractor
[2] The case holding that it is reasonable to view that the contractor's warranty liability is exempted on the ground that the contractor's warranty liability is in violation of the principle of good faith if the contractor did not notify the contractor of the defect warranty liability period for the reason that the contractor and the contractor did not notify the contractor of the defect warranty liability period for the reason that the contractor did not know of the defect in the construction, even if the contractor did not notify the contractor of the defect in the construction, the contractor's warranty liability is exempted on the ground that the contractor's warranty liability is not violated the principle of good faith, and in this case, Article 672 of the Civil Act applies mutatis mutandis to Article 672 of the Civil Act.
[1] Articles 2, 671(1), and 672 of the Civil Act / [2] Articles 2, 671(1), and 672 of the Civil Act
Korea National Housing Corporation (Law Firm Daak General Law Office, Attorneys Seo-gu et al., Counsel for the plaintiff-appellant)
Dratland (Attorney Sick-in, Counsel for the defendant-appellant)
Seoul High Court Decision 98Na62680 delivered on March 5, 1999
The judgment below is reversed and the case is remanded to Seoul High Court.
1. On November 18, 1987, the court below concluded a contract with the defendant for construction work of 300 households of the apartment of this case under a contract with the defendant for construction work, and the defendant concluded a completion inspection on March 5, 1989. The plaintiff completed the construction work of the above apartment of this case and completed the completion inspection. On June 5, 1987, the plaintiff investigated the causes of the phenomenon where the above roof of the above apartment of this apartment of this case is slboard and damaged, and as a result, the defendant constructed the apartment of this case with the design drawing of the apartment of this case, even though the construction work of the apartment of this case was built with the PC board, and it was impossible to dismiss the plaintiff's new defect liability period after the completion inspection, and it was found that the plaintiff's new defect liability period was not submitted to the defendant before and after the completion inspection as to the defect warranty period, and there was no error in the misapprehension of legal principles as to the plaintiff's defect warranty liability period or the warranty period of this case.
2. Furthermore, the court below rejected the plaintiff's assertion that the above apartment building is a building made of stone, stone, brick, metal or other similar materials as stipulated in the proviso of Article 671 (1) of the Civil Act, and the contractor's warranty liability period is ten years, and even if there was an agreement to reduce that period to two years, the defendant did not notify the plaintiff even though he knew of such defects in construction, the defendant shall not be exempted from warranty liability for ten years in accordance with the purport of Article 672 of the Civil Act, on the ground that Article 672 of the Civil Act applies only to the case where the contract to exempt the warranty liability was made, and it shall not apply or apply mutatis mutandis to the case where the contract to reduce the warranty liability period was made. However, this part of the judgment of the court below is hard to accept for the following
Article 672 of the Civil Act provides that a contractor shall not be exempt from liability for any fact not notified even if the contractor has agreed to be exempt from liability for warranty. In such a case, the exemption of liability for warranty is contrary to the principle of good faith. Thus, even if the contractor has agreed to limit liability for warranty, such as the reduction of the period of liability for warranty, etc., and the contractor has agreed to limit liability for warranty, if it violates the principle of good faith to limit liability for the fact not notified to the contractor, then the purport of the above provision should be inferred
In this case, since the defendant constructed a PC on the design map in the construction of a new apartment building among the new apartment construction works contracted by the plaintiff, even though it had been constructed with a PC board in the construction of the roof drainage system, the damage was caused by a PC board due to the corrosion after the expiration of the warranty period of two years agreed upon at the time of the contract, and the above construction defect cannot be easily discovered from the outside, and the damage caused by the defect occurred after the warranty period of the contract expires, considering that even if the defendant agreed to the warranty period of two years from the date of the completion inspection, unless the defendant knew the above construction defect and did not notify the plaintiff, it is reasonable to view that the defendant is exempted from the warranty liability of the defendant just because the warranty period of the contract expired. In this case, if there are circumstances, Article 672 of the Civil Act should not be exempted from the warranty liability of the defendant on the damage caused by the defect. The judgment below erred by misapprehending the legal principles of Article 672 of the Civil Act or failing to exhaust all necessary deliberations, which affected the conclusion of the judgment.
3. Therefore, without determining the remainder of the grounds of appeal, we reverse the judgment below and remand the case to the court below. It is so decided as per Disposition.
Justices Shin Sung-sung (Presiding Justice)