하자보수비용
1. All appeals filed by the plaintiff and the defendant are dismissed.
2. The costs of appeal shall be borne by each party.
The purport of the claim and appeal is the purport of the appeal.
1. The grounds for the court’s explanation as to this case are added to the reasoning of the judgment maintaining the conclusion of the first instance court. The defendant’s argument at the trial are as stated in the reasoning of the judgment of the first instance except for the following additional determination as to the argument at the trial. Thus, this is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.
- In full view of the evidence submitted up to the date of the judgment attached to the above, in particular, evidence Nos. 3 (Work Execution Plan), evidence Nos. 5 and 6 (each photograph), and the purport of the entire pleadings as a result of the appraisal of the defects by the appraiser of the first instance trial, the first instance court’s determination on the issue, such as the existence of construction defects, the amount of repair costs, the unique characteristics of the construction site of this case, and the degree thereof, shall not be deemed unlawful.
2. The defendant asserts that "The plaintiff's further claim is in conflict with the res judicata effect of the conciliation and the validity of the reconciliation contract even though the conciliation was concluded in consideration of the defect repair costs in the lawsuit filed by the defendant for the claim for the construction price as stated in the basic facts multi-paragraph."
Since the same effect as a final and conclusive judgment recognized in the protocol is limited to a judgment on the existence of a legal relationship which is a subject matter of lawsuit, unless there are special circumstances, it should be recognized that the legal relationship is specified in the provisions of the protocol or is stated additionally following the indication of claims in the protocol, and that the legal relationship becomes a subject matter of lawsuit by the contents in the protocol of mediation.
(See Supreme Court Decision 2006Da78732 Decided April 26, 2007). In light of the above legal principles, No. 4 (Protocol of Conciliation) does not have any indication that the cost of repairing defects in the instant case was the relation of right, which is the subject matter of the instant lawsuit, and only the description of No. 5-1 through No. 4, as alleged by the Defendant, the instant claim was concluded prior to the conclusion of the res judicata.