The council of occupants' representatives (Attorneys Park Hong-chul et al., Counsel for the plaintiff-appellant)

Korea Housing Guarantee Co., Ltd. and one other (Law Firm Future, Attorneys Park Jong-woo et al., Counsel for the plaintiff-appellant)

April 16, 2008

Seoul Central District Court Decision 2003Gahap2142 Delivered on July 9, 2004

1. Of the judgment of the court of first instance, the part against the Defendant Korea Housing Guarantee Co., Ltd. ordering payment exceeding 222,87,000 won and its equivalent 5% per annum from January 23, 2003 to February 18, 2009, and 20% per annum from the next day to the date of full payment, shall be revoked, and the Plaintiff’s claim corresponding to the above revoked part shall be dismissed.

2. The remaining appeals by the Defendant Housing Guarantee Co., Ltd. are dismissed;

3. The plaintiff's primary claim and conjunctive claim for the defendant KC Construction Co., Ltd. are dismissed in exchange at the trial.

4. A. The plaintiff shall pay 931,651,751 won as the return of provisional payments to defendant KC Construction Co., Ltd. and 5% per annum from August 17, 2004 to February 18, 2009, and 20% per annum from the next day to the day of complete payment.

B. The motion for the return of the remainder of the provisional payment of Defendant KC Construction Co., Ltd. is dismissed.

C. The above paragraph (a) can be provisionally executed.

5. The plaintiff's total litigation costs incurred between the plaintiff and the defendant's Housing Guarantee Co., Ltd. are three-minutes, and the remaining costs are assessed against the plaintiff, the defendant's Housing Guarantee Co., Ltd., the plaintiff's total litigation costs incurred between the plaintiff and the defendant's Housing Guarantee Co., Ltd., and the application costs

1. Purport of claim

A. Purport of the claim against Defendant KC Construction

Defendant KC Construction Co., Ltd. (hereinafter “Defendant Co., Ltd.”) shall pay to the Plaintiff 1,171,092,109 won and the amount equivalent to 20% per annum from the day following the delivery of a copy of the complaint in this case to the day of complete payment (the Plaintiff shall be from the first instance trial, the Plaintiff shall pay damages in lieu of the defect repair to the Defendant Co., Ltd. (hereinafter “Defendant Co., Ltd.”). In response to the case where the Plaintiff’s direct damages claim against the Defendant Co., Ltd. for the defect repair in lieu of the above qualification of the Plaintiff Co., Ltd., Ltd. (hereinafter “UB”), each of the above sectional owners shall be deemed to have received damages from the Defendant Co., Ltd., Ltd. (hereinafter “UB”) for the reason that the Plaintiff exchanged the right of subrogation for the defect repair in lieu of the above qualification of the Plaintiff Co., Ltd., Ltd. (hereinafter “UBB”) as the obligee’s alternative damages claim against the Plaintiff Co., Ltd. for the defect repair in lieu of the obligee’s claim.

B. Claim against the Defendant Housing Guarantee Co., Ltd.

Defendant Korea Housing Guarantee Co., Ltd. (hereinafter “Defendant Guarantee”) shall pay to each of the Defendant Company and each of the Plaintiff an amount of KRW 468,549,943 out of the amount stated in the above paragraph (a) and an annual amount of KRW 20% per annum from the day following the delivery of a copy of the instant complaint to the day of full payment (the Plaintiff reduced the Plaintiff’s claim against Defendant Guarantee at the trial as above).

2. Purport of appeal

The part of the judgment of the court of first instance against the defendants is revoked, and each of the plaintiff's claims against the defendants corresponding to the above revoked part is dismissed (However, the part against the defendant company in the judgment of the court of first instance was naturally invalidated due to the exchange change of claims in the court of first instance as seen earlier).

3. Purport of request for the return of provisional payments;

The plaintiff shall pay to the defendant company the amount of KRW 931,651,751 with the return of the provisional payment and 20% interest per annum from August 17, 2004 to the date of full payment.

1. Facts of recognition;

The following facts may be acknowledged by taking into account the following facts: Gap evidence 1, 2, 5-1 through 14, 7, 9-1 through 3, 11-1, 2, 13, 15-1, 2, 16 through 19, 20, 21, 23 through 36, Eul evidence 1-5, 2 through 5, 22 through 4, 1-1, 3-1 through 3, 4-2, 3-1 through 3, 4-4 through 8, 15-1, 2, 16 through 19, 20, 23 through 36, 23-1 through 4, 1-2, 3-1 through 3, 4-8, 3-1 through 8 of the evidence of the first instance court, the testimony of the non-party 1, and the purport of the appraisal of the non-party 2 by the non-party 1 in the trial.

A. Down-gu, Busan and a project proprietor who carried out the project of constructing and selling the apartment of this case composed of 101 242 dong and 234 dong and 236 dong and 476 dong units on the ground of 563-40 dong-gu, Geumcheon-gu, Busan. The defendant company is a construction company that carried out the apartment of this case with a contract for the construction of the apartment of this case on December 3, 1993, and the plaintiff is the council of occupants' representatives of the apartment of this case formed by the occupants of the apartment of this case.

B. The apartment of this case was completed on April 30, 1997, and was inspected on May 30, 1997 and was occupied by residents around that time.

C. On May 19, 197, in order to guarantee the obligation to repair the defects of the apartment of this case, the light concluded two compulsory warranty contracts (hereinafter “each of the instant guarantee contracts”) with the Defendant’s guarantee (the housing business mutual aid association was changed to the Defendant’s guarantee, but at the time of June 3, 1999), and issued and delivered each of the respective compulsory warranty contracts to the head of the Geumcheon-gu, which is the authority for the inspection of the authority for the inspection of the defect warranty, but the name of the guarantee creditor was changed as the Plaintiff was formed by the occupant of the apartment of this case.

(i) No. 97-20-1 of the letter of guarantee

㈎ 보증금액 : 금 749,241,820원

㈏ 사업명 : 구서동 금강부광아파트

㈐ 보증기간 : 1997. 5. 30.부터 2000. 5. 29.까지 3년간

Sheet No. 97-20-2

㈎ 보증금액 : 금 187,310,460원

㈏ 사업명 : 구서동 금강부광아파트

㈐ 보증기간 : 1997. 5. 30.부터 2007. 5. 29.까지 10년간

D. According to the above terms and conditions of warranty on the back of the above terms and conditions of warranty on defects that occurred during the guarantee period, the defendant's warranty provides that the defendant's warranty shall compensate the damages suffered by the council of occupants' representatives within the scope of the guaranteed amount pursuant to the terms and conditions as stated in the letter of warranty and the terms and conditions, but shall not compensate for the defects that occurred prior to the inspection on usage.

E. In the construction of the apartment of this case, there were many defects in the apartment of this case, which are different from the design drawing at the time of approval for the apartment of this case. The plaintiff sought liability for the defects in the apartment of this case. However, the light did not long after the residents moved in the apartment of this case. Thus, the plaintiff again requested the repair of defects to the defendant company that constructed the apartment of this case several times from June 12, 199 to March 7, 2002, and it is difficult to accept the repair of defects from February 9, 200 to January 22, 202. The defendant company also requested the repair of defects to the defendant's warranty for several times from the above defect in the construction of the apartment of this case. Although the defendant company had to repair some of these defects, the defendant company still stated the defect in the separate list 1 and 2 of the defect of this case as stated in the separate list of the defect of this case and each defect in the separate list of the defect of this case (the same shall apply to each defect of this case).

F. The Plaintiff filed the instant lawsuit against the Defendant Guarantee and the Defendant Company on January 10, 2003. In the first instance court, the Defendants first filed a claim for damages in lieu of the defect repair on the premise that they had the right to claim damages in lieu of the defect repair of each of the instant case among the Defendants. Under the premise that the Defendant Company had the right to claim damages in lieu of the defect repair of each of the instant defect repair, the Plaintiff first instance filed a claim for damages in lieu of the defect repair in lieu of the defect repair in subrogation as the obligee’s obligee’s obligee’s obligee’s obligee’s obligee’s obligee’s obligee’s obligee’s obligee’s right to claim damages in lieu of the defect repair, which the Plaintiff had the right to claim in lieu of

G. However, while the lawsuit similar to this case was pending, the council of occupants' representatives has no right to claim damages for the defect repair against the plaintiff, and each sectional owner of the apartment has no right to claim damages, and it is clear that only the plaintiff has a right to claim damages. The plaintiff, while the trial was in progress, transferred all of the rights to claim damages in lieu of the defect repair of the apartment in this case from the sectional owners of 357 households among the sectional owners of the apartment in this case, and notified the defendant company of the above assignment of the above right to claim damages in lieu of the defect repair in this case. Since some of the sectional owners of the apartment in this case were transferred the right to claim damages in lieu of the defect repair from some of the sectional owners of the apartment in this case, the plaintiff first raised a claim for the damages in lieu of the defect repair in this case on April 4, 2006, in lieu of the first trial date, in substitution of the claim in the first instance trial against the defendant company, and in preparation for the replacement of the right to claim damages directly against the transferee of the apartment in this case.

2. Determination on the part of the claim against the Defendant Company

A. Determination on the assertion of the lawsuit trust by the defendant company

As seen earlier, the Plaintiff asserted that the Defendant Company’s primary and conjunctive claim against the Defendant Company on the ground that the claim for damages in lieu of defect repair was transferred from the sectional owners of the apartment in this case, and that the transfer and takeover of the claim between the Plaintiff and the said sectional owners constituted a prohibited litigation trust. Therefore, each of the above claims should not be accepted.

Article 7 of the Trust Act is applicable by analogy even if the assignment of claims does not constitute a trust under the Trust Act, in a case where the assignment of claims is made primarily for the purpose of making the repair of the apartment in this case, and the transfer of claims is null and void (see, e.g., Supreme Court Decisions 2000Da4210, Dec. 6, 2002; 2003Da20909, 20916, Mar. 25, 2004). However, in full view of all the circumstances such as the transfer of the damage claim in lieu of the repair of the apartment in this case, the transfer of the damage claim from the sectional owner cannot be deemed to be the main purpose of enabling the plaintiff to conduct litigation, and the above argument by the defendant company is without merit.

B. Judgment on the main claim

The plaintiff is the primary cause of the claim in this case. The defendant company is a business entity that executes the business of constructing and selling the apartment in this case along with the mine area. Accordingly, pursuant to Article 9 of the Act on the Ownership and Management of Aggregate Buildings (hereinafter "the Aggregate Buildings Act"), the defendant company, as a business entity, has a duty to compensate for damages in lieu of the defect repair of the apartment in this case to the sectional owners of each of the households of the apartment in this case. Therefore, among the sectional owners of the apartment in this case, the plaintiff who was transferred the damage claim in lieu of the defect repair in this case, is liable to pay to the plaintiff who was transferred the damage claim in lieu of the defect repair,

However, Article 9 of the Housing Construction Promotion Act provides that the owner of the above apartment buildings shall bear the liability for defect repair under the provisions of the Act No. 5 of the Housing Construction Promotion Act, which is the ground for the amendment of the Act No. 1, 60, and the Act No. 1, which provides that the owner of the above apartment buildings shall bear the liability for defect repair under the provisions of the Act No. 5, and that the construction company shall not bear the liability for defect repair under the provisions of the Act No. 6, which are the construction company's construction contract No. 1, as seen earlier. 6, as long as the Act No. 5, which is the ground for the amendment of the Act No. 1, the Act No. 6, which is the owner of the above apartment buildings, shall be the owner of the above apartment buildings, as the owner of the above apartment buildings and the owner of the above apartment buildings shall not be held liable for defect repair under the provisions of the Act No. 6, which is the owner of the above apartment buildings.

Therefore, the plaintiff's primary claim of this case seeking compensation for damages directly in lieu of defect repairs against the defendant company on the premise that the defendant company is a seller or a project undertaker in the construction and sale of the apartment of this case is without merit.

C. Determination on the conjunctive claim

(i)the existence of preserved claims

㈎ 집합건물법 제9조 에 의한 하자담보추급권은 특별한 사정이 없는 한 집합건물의 구분소유자에게 귀속하는 것이므로( 대법원 2004. 1. 27. 선고 2001다24891 판결 등 참조), 앞서 본 바와 같이 총 476세대의 이 사건 아파트 구분소유자들 중 357세대의 구분소유자들로부터 이 사건 아파트의 하자보수에 갈음한 손해배상채권을 양도받은 원고에게, 이 사건 아파트의 건축, 분양에 있어 사업주체였던 부광은 위와 같이 양도받은 손해배상채권의 범위 내에서는 특별한 사정이 없는 한 집합건물법 제9조 에 의한 손해배상책임을 부담한다고 봄이 상당하다(피고 회사는 원고가 이 사건 구분소유자들로부터 양도받은 채권은, 구분소유자들이 부광에 대하여 가지는 손해배상채권이 아니라, 구분소유자들이 피고 회사에 대하여 가지는 손해배상채권일 뿐이어서, 이 사건 원고의 피고 회사에 대한 예비적 청구는, 채권자 대위권의 행사에 있어서 피보전채권으로 내세운 구분소유자들의 부광에 대한 손해배상채권을 원고가 보유하고 있지 못하므로 부적법하다는 취지로 주장하고 있고, 앞서 본 각 증거들에 의하면, 원고와 이 사건 아파트의 구분소유자들 사이에 작성된 각 채권양도양수계약서에는 “양도인은 이 사건 아파트의 소유자들로써 위 아파트의 사업주체인 피고 회사에 대한 위 아파트의 하자보수 청구권 및 이에 갈음하는 손해배상 청구권 일체를 위 아파트의 관리주체인 원고에게 양도한다”고 기재되어 있어 그 문면만으로는 구분소유자들이 원고에게 부광이 아닌 피고 회사에 대한 손해배상채권만을 양도한 것으로 볼 소지가 있으나, 한편 위 채권양도양수계약서에도 양도의 대상을 “청구권 일체”라고 기재하고 있고, 이 사건 아파트의 하자보수에 갈음한 손해배상채권의 양도 경위, 시기, 양도인인 구분소유자들과 양수인인 원고의 관계, 채권양도에 있어서 당사자들의 의사 등 제반사정에 비추어 보면, 양도인인 구분소유자들과 양수인인 원고 사이에서는 피고 회사에 대한 손해배상채권 뿐만 아니라 사업주체인 부광에 대한 손해배상채권을 포함하여 이 사건 하자와 관련된 구분소유자들의 모든 권리를 원고에게 양도하는 의사의 합치가 있었다고 봄이 상당하다).

㈏ 이에 대하여, 피고 회사는, 부광과 이 사건 아파트 구분소유자들 사이의 구서 금강아파트 공급계약서 제13조에 의하면 목적물의 시공상의 하자에 대하여 공동주택관리령의 규정에 의하여 보수책임을 진다고 하고 있으므로, 위 구분소유자들이나 구분소유자들로부터 손해배상채권을 양도받은 원고는 부광에게 공동주택관리령상의 하자보수기간 내에 재판상·재판외 권리를 행사하였어야 하고, 가사 위 손해배상채권을 하자보수기간 내에 반드시 행사할 필요는 없다 하더라도 위 손해배상채권은 상법상의 단기 소멸시효인 5년의 기간 경과로 이미 소멸하였으므로, 이 사건 원고의 피고 회사에 대한 예비적 청구는 이미 시효의 완성으로 소멸한 위 손해배상채권을 채권자대위권 행사에 있어서의 피보전채권으로 내세운 것으로서 부적법하므로, 이를 각하하여야 한다는 취지로 항변한다.

However, in this case, the plaintiff stipulated Article 9 of the Aggregate Buildings Act as the ground for the liability for damages to be borne by a person holding a divided ownership in relation to the owner of a divided ownership. Article 9 of the Aggregate Buildings Act provides that the provisions of the Civil Act concerning the liability for warranty shall apply mutatis mutandis to the warranty liability of the person holding a divided ownership who constructed and sold the aggregate building in order to induce a building or a seller to establish a solid building and to effectively protect the owner of a defective building. The contents of the liability for warranty shall be clarified. Since the liability under Article 9 of the Aggregate Buildings Act is not based on the sale contract but on the current sectional owner of an aggregate building, the ten-year extinctive prescription period is applied to the damage claim (see Supreme Court Decision 2008Da12439, Dec. 11, 2008; Supreme Court Decision 2008Da12439, Dec. 14, 2008). Accordingly, the period of prescription period for damages claim against the owner of a divided ownership, which the plaintiff claimed as the right of the subrogation of this case, is the transfer date 130.

Doz. Whether there is a subrogation claim

㈎ 수급인의 도급인에 대한 하자담보책임의 기간을 정한 건설산업기본법 제28조 에 의하면, 수급인은 발주자에 대하여 벽돌쌓기식구조 등의 구조로 된 것인 경우 건설공사의 완공일로부터 10년의 범위 내에서, 기타의 구조로 된 것은 건설공사의 완공일로부터 5년의 범위 내에서 공사의 종류별로 대통령령이 정하는 기간 이내에 발생한 하자에 대하여 담보책임이 있다고 하면서, 다만 건설공사의 하자담보책임기간에 관하여 다른 법령( 민법 제670조 , 제671조 를 제외한다)에 특별한 규정이 있거나 도급계약에서 따로 정한 경우에는 그 법령이나 도급계약이 정한 바에 따른다고 규정하고 있다.

However, according to the statement in Eul evidence No. 8, the defendant company may recognize the fact that the defect repair period of the apartment of this case was agreed to be three years from the date of the legal completion (including the date of the provisional approval). Meanwhile, the defendant company completed the apartment of this case around April 30, 1997 and completed the pre-use inspection on the apartment of this case on May 30, 1997. Thus, the defendant company has the duty to compensate for the defect that occurred within three years from May 30, 1997, the date of the legal completion of the construction of the apartment of this case. Therefore, it is reasonable to deem that the defendant company has the duty to pay for the defect repair expenses recognized in the list 1 and 2 of the defect defects attached hereto, unless there are special circumstances that the plaintiff seeks the above damages by subrogation as the creditor of the luminous as a mining creditor.

㈏ 이에 대하여 피고 회사는, 피고 회사의 부광에 대한 하자보수에 갈음하는 손해배상청구는 도급계약상의 하자보수기간인 3년 안에 행사되어야 하는데, 원고는 위 기간이 경과한 후에 이를 청구하고 있으므로, 피고 회사는 원고에게 제척기간의 경과로 인하여 더 이상 하자담보책임을 지지 않는다고 주장하나, 위 도급계약상 3년의 하자보수기간은 그 기간 내에 발생한 하자에 대하여 피고 회사가 담보책임을 지겠다는 취지의 하자발생기간으로 보여질 뿐, 그 기간 내에 손해배상을 청구하여야 한다는 취지에서 제척기간을 정한 것이 아니라고 봄이 상당하므로, 피고 회사의 위 주장은 이유 없다.

㈐ 피고 회사는 다시, 위 도급계약상 3년의 하자보수기간을 제척기간이 아닌 하자발생기간으로 보더라도, 위 하자보수에 갈음하는 손해배상채권은 하자보수기간인 2000. 5. 30.(법정 준공일인 1997. 5. 30.로부터 3년이 경과한 일자이다)로부터 5년의 상사 소멸시효기간이 도과함으로써 소멸하였다고 주장한다.

In light of the above facts, under the premise that the plaintiff originally filed a lawsuit of this case on January 10, 2003 under the premise that he/she has a right to claim damages in lieu of the defect repair of this case, the plaintiff first submitted a preparatory document stating that the plaintiff did not have a right to claim damages and only each sectional owner has a right to claim damages, and that the plaintiff would have a right to claim damages from some sectional owners, and that he/she would have a right to claim damages from the above sectional owners when he/she transferred the right to claim damages from the above sectional owners on April 4, 2006. Thus, the plaintiff's first lawsuit cannot be deemed as having an effect of interrupting prescription since the plaintiff's first lawsuit was filed unless there is any right to claim damages from the sectional owner. Barring special circumstances, the plaintiff's right to claim damages from the plaintiff as the legitimate owner upon the assignment of assignment of the above preparatory document can not be viewed as having an effect of interrupting prescription only when the plaintiff's right to claim damages from the defendant's sectional owner, which had been assigned to the plaintiff's right to claim.

On the other hand, the liability for damages in lieu of the defect repair that the defendant company bears against the non-mining area cannot be deemed as a statutory liability under the provisions of the Aggregate Buildings Act, unlike the liability for damages under Article 9 of the Aggregate Buildings Act against the sectional owners. However, the liability for damages arising from the non-performance of the liability for damages under the contract between the defendant company and the non-mining area. As a commercial contract between the defendant company and the non-mining area, the short-term extinctive prescription period under the Commercial Act should apply to the damage liability arising from the non-performance of such commercial contract (see Supreme Court Decision 97Da9260, Aug. 26, 1997). Accordingly, it is reasonable to view that the extinctive prescription period for the damage liability that the defendant company bears against the non-mining area has expired due to the lapse of five years, which is the expiration of the extinctive prescription period under the Commercial Act (the plaintiff's assertion is without merit). In addition, the period of 20 years prior to the expiration of the prescription period for the above damages claim against the defendant company.

【Finality

Therefore, as a mining obligee who received from the sectional owners of the apartment of this case the claim for damages against the mine damages against the defendant company in lieu of the defect repair of the apartment of this case, the plaintiff's preliminary claim against the defendant company in lieu of the defect repair of the apartment of this case is without merit, as long as the damage claim against the defendant company in light has expired due to the completion of the statute of limitations. Thus, there is no need to further determine other matters such as the amount of damage

3. Determination on the part of the claim against the defendant's guarantee

A. Determination on the cause of the claim

As seen earlier, the guaranty creditor is liable for damages in lieu of each of the above defects within the scope of the guaranteed amount under each of the respective guarantee contracts of this case; 300 won for defect repair; 40 won for defect repair; 50 won for non-performance thereof; 30 won for the apartment of this case; 100 won for each of the above defects as stated in the separate sheet 1 and 2; 400 won for non-performance thereof; 300 won for defect repair; 50 won for each of the above defects; 400 won for the above defects + 100 won for defect repair under each of the separate guarantee contracts of this case; 300 won for defect repair + 1060 won for the above defects + 400 won for the above defects + 1060 won for 30 won for defect repair or other defects; 400 won for the above reasons; 500 won for each of the above reasons; 500 won for damages or other defects £« 200 won for defect repair prior to inspection.

B. Determination on the assertion of Defendant’s guarantee

(1) The defendant's warranty asserts that the defect repair cost is excluded from the defendant's liability amount of damages, and that each of the defects existing in the apartment of this case is the defect that occurred before the use inspection.

According to Article 38(15) of the former Housing Construction Promotion Act (amended by Act No. 5908, Feb. 8, 199); Article 17 of the former Decree on the Management of Multi-Family Housing (amended by Presidential Decree No. 16069, Dec. 31, 198), the warranty period for newly constructed apartment units shall be set and the warranty period for the construction of the apartment units shall not be determined; the warranty period shall not be applicable to the alteration of the existing Enforcement Decree of the Housing Construction Promotion Act (amended by Presidential Decree No. 16283, Apr. 30, 199), and the warranty period shall not be applicable to the alteration of the existing Rules on the Construction of Multi-Family Housing; the warranty period shall not be applicable to the alteration of the existing Rules on the Construction of Multi-Family Housing; the warranty period shall not be applicable to the alteration of the existing Rules on the Construction of Multi-Family Housing; the warranty period shall not be applicable to the alteration of the existing Rules on the Construction of Multi-Family Housing.

D. The Defendant’s warranty asserts to the effect that the defect subject to each of the instant guarantee contracts is the defect prescribed in Article 16 of the 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, and that the defect occurred before the expiration of the defect repair obligation period stipulated in the above Decree on the Management of Multi-Family Housing and the Rules on the Management of Multi-Family Housing. The Defendant’s warranty asserts to the effect that the defect was the defect that occurred after the lapse of the defect repair obligation period stipulated in the above Decree and the Rules on the Management of Multi-Family Housing.

In light of the following facts: (a) after classifying the facility construction subject to defect repair into 17 items under the Decree on the Management of Multi-Family Housing and the Rules on the Management of Multi-Family Housing, the defect liability period of the columns, bearing walls shall be 10 years to 3 years; (b) the floor and roof defect repair period shall be separately prescribed for 5 years; and (c) the defect subject to the guarantee of each guarantee contract of this case shall have occurred before the expiration of the warranty period stipulated under the Decree on the Management of Multi-Family Housing and the Rules on the Management of Multi-Family Housing; and (d) even if the defect occurred within the warranty period stipulated under the contract on the warranty, the defect shall not be subject to the guarantee; (e) on the other hand, it is difficult to require the council of occupants' representatives to prove the existence of the defect; and (e) the fact that the defect did not occur within the warranty period stipulated under the Decree on the Management of Multi-Family Housing and the Rules on the Management of Multi-Family Housing should be proved from the side of the defect liability; and (e) there is no clear evidence to acknowledge that the defect warranty of the above.

【Defendant Guarantee” also argues that, even if each defect of the apartment of this case occurred within the period of defect repair obligation under the above Decree of the Management of the Multi-Family Housing and the Rules of the Management of the Multi-Family Housing, the Plaintiff cannot claim the payment of the deposit to the Defendant Guarantee any longer due to the lapse of the exclusion period unless the Plaintiff claims the payment of the deposit under each of the respective contracts of this case within the defect repair obligation period. However, it is reasonable to view the above defect repair obligation period as the defect repair obligation period is not the exclusion period, as in the case of the foregoing agreement between the Defendant Company and its father, and therefore, the above assertion by the Defendant Guarantee

C. Sub-decision

Therefore, the defendant guarantee is obliged to pay to the plaintiff 22,87,00 won under each guarantee insurance contract of this case and damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act until February 18, 2009, which is the date of the decision of this case where it is deemed reasonable for the defendant guarantee to dispute about the existence or scope of the obligation of this case from January 23, 2003 to the date of delivery of a copy of the complaint of this case against the defendant guarantee of this case.

4. Determination as to the application for the return of provisional payment by the defendant company

The part against the defendant company in the judgment of the court of first instance is naturally invalidated by changing the plaintiff's claim against the defendant company in exchange for the primary and conjunctive claim at the trial, and all of the plaintiff's main and conjunctive claim against the defendant company that changed in exchange at the trial of the court of first instance are without merit. Meanwhile, according to the above evidence Nos. 11-1 through 3, it can be acknowledged that the plaintiff paid 931,651,711 won to the defendant company on August 16, 2004 in accordance with the judgment of the provisional execution sentence of the court of first instance, and there is no counter-proof. Thus, as long as the plaintiff's right to receive the above amount can not be recognized by the defendant company, the plaintiff is not obliged to pay the above 931,651,751 won with the return of provisional payment and damages for delay from the day after August 17, 2004 to the day after the day after the provisional execution order of the court of first instance until 209.

5. Conclusion

Therefore, the plaintiff's claim against the defendant guarantee of this case against the defendant of this case shall be accepted within the extent of the above recognition, and the remaining claim against the defendant of this case shall be dismissed for the reason that there is no reason. Among the judgment of the court of first instance, the part against the defendant's guarantee ordering payment in excess of the above recognition scope is unfair, and thus, it is so revoked, and the plaintiff's claim against the defendant's guarantee corresponding to the above revoked part is dismissed, and the remaining appeal against the defendant's guarantee is dismissed for the reason that there is no reason. Further, the plaintiff's claim against the defendant's company as the main and conjunctive claim against the changed plaintiff's company exchanged in the court of first instance is dismissed for the reason that it is reasonable, and the remaining claim is dismissed

[Attachment]

Judges Sung Pung-chul (Presiding Judge)