[1] The legal nature of the contractor's warranty liability period under Articles 667 through 671 of the Civil Code applied mutatis mutandis by Article 9 of the former Act on the Ownership and Management of Aggregate Buildings (=the exclusion period) and the contractor's warranty liability period for concrete structures (=the ten years after delivery)

[2] In a case where the council of occupants' representatives of the apartment building Gap filed a claim for damages against the apartment selling company in lieu of the defect repair under the former Act on Ownership and Management of Condominium Buildings, and thereafter transferred the damage claim to the sectional owners and notified the apartment selling company of the transfer of the claim, the case holding that the above claim for damages expires with the limitation period, since it is clear that the council of occupants' representatives of the apartment building Gap did not exercise its right on behalf of the sectional owners, or that the council of occupants' representatives exercised its right to claim damages in order to preserve the claim against the sectional owners, or that the council of occupants' representatives of the apartment building Gap exercised its right to claim damages on behalf of the sectional owners, or that the council of occupants' representatives of the apartment building Gap exercised its right to claim damages in subrogation of the claim against the owner

[3] In a case where the council of occupants' representatives of the apartment complex Gap lost the claim for the takeover amount which was changed in exchange at the court of first instance, and the claim for the takeover amount by the previous assignment of claim was added to the conjunctive claim while maintaining it as the primary claim, the case holding that the court below should have ordered the dismissal of the plaintiff's appeal on the ground that the dismissal of the plaintiff's appeal was the same as the judgment of the court of first instance while making a decision on the dismissal of the conjunctive claim in the first instance, and that the court below should have ordered a separate order to dismiss the conjunctive claim where the conjunctive claim added at the court

[1] Article 9 of the former Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 6925 of July 18, 2003), Articles 667, 668, 669, 670, and 671 of the Civil Act / [2] Article 9 of the former Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 6925 of July 18, 2003), Articles 67, 668, 669, 670, and 671 of the Civil Act / [3] Article 253 of the Civil Procedure Act

[1] Supreme Court Decision 2008Da86232 Decided May 28, 2009, Supreme Court Decision 2008Da88368 Decided January 14, 2010

Daegu Han-gu 2 Apartment Council of Residents (Law Firm Shin, Attorneys Oh Jeong-tae et al., Counsel for the plaintiff-appellant)

Korea Land and Housing Corporation (Law Firm Doll, Attorneys Gyeong-jin et al., Counsel for the plaintiff-appellant)

Hanyang, Inc.

Seoul High Court Decision 2009Na83416 decided April 20, 2010

The part of the judgment of the court below concerning the conjunctive claim is reversed, and all of the plaintiff's conjunctive claim added to that part is dismissed. The remainder of the appeal is dismissed. The costs of the court below and the costs of the appeal are assessed against the plaintiff including the part

1. The grounds of appeal are examined.

A. As to the ground of appeal on the claim for damages in lieu of defect repair in the primary claimant of this case

Since the warranty liability period of a contractor under Articles 67 through 671 of the Civil Act, which are applied mutatis mutandis by Article 9 of the former Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 6925, Jul. 18, 2003; hereinafter referred to as the "former Aggregate Buildings Act") is the limitation period for the exercise of rights other than a judicial or non-judicial right, the warranty warranty right is naturally extinguished. As regards concrete structures such as the apartment of this case, the proviso of Article 671(1) of the Civil Act is applied, and the warranty period is ten years after delivery (see Supreme Court Decisions 2008Da86232, May 28, 2009; 2008Da8368, Jan. 14, 2010, etc.).

According to the facts duly established by the court below, the plaintiff filed the lawsuit of this case against the defendant who newly built and sold the apartment of this case on December 4, 2006, and filed a claim for damages in lieu of defect repair under the former Aggregate Buildings Act. On January 5, 2009, the plaintiff transferred the damage claim from the sectional owners of 1,032 households among the total 1,119 households of the apartment of this case and notified the defendant of the transfer of the claim. On April 2, 2009, the plaintiff submitted to the court of first instance a written application for change of the purport of the claim and the ground for change to exchange the cause of the claim of this case to the claim for transfer money under the above assignment of the claim, but the sectional owners did not directly exercise their right for damages in court or outside court. Meanwhile, the defendant had the sectional owners move into the apartment of this case after receiving the inspection of the pre-use on December 7, 196 to January 15, 197.

Examining the above facts in light of the above legal principles, the plaintiff's lawsuit of this case on December 4, 2006 is merely the plaintiff's assertion of his right, and it cannot be deemed that the plaintiff exercised his right on behalf of the sectional owners, or the plaintiff exercised his right to compensation for damages in order to preserve his claim against the sectional owners. Furthermore, the time when the plaintiff submitted a claim for the alteration of the purport and cause of the claim to change the cause of the claim of this case in exchange for the claim for the transfer of transfer from the claim for damages in lieu of the defect repair under the former Aggregate Buildings Act to the claim for the transfer of transfer to the claim for the transfer of money in lieu of the defect repair under the former Aggregate Buildings Act, it is clear that the ten-year limitation period from

The decision of the court below to the same purport is just, and there is no error of law by misapprehending the legal nature of the defect liability period under the former Aggregate Buildings Act and the legal principles as to the exercise of the right to claim damages by proxy or subrogation. The ground of appeal on this part is without merit.

B. As to the ground of appeal on the claim for damages due to the conjunctive tort or nonperformance

According to the reasoning of the judgment below, the court below determined that the plaintiff's claim for damages caused by the plaintiff's illegal act or non-performance of obligation under Article 756 of the Civil Act was not justified on the ground that the defendant merely asserted that the defendant should bear tort liability under Article 756 of the Civil Act or the non-performance of obligation under Article 393 of the Civil Act with respect to the defect that occurred in the apartment of this case

In light of the records, we affirm the judgment of the court below as just, and we cannot accept the allegation in the grounds of appeal that is erroneous.

2. We examine ex officio the conjunctive claim of this case with regard to the indication of the text of the judgment.

According to the records, when the plaintiff filed a complete failure with respect to the claim for the amount of the takeover of this case that was changed in exchange in the court of first instance, the plaintiff submitted the statement of reasons for appeal on December 2, 2009, including that "if the claim for the amount of the takeover of this case cannot be accepted due to the lapse of the limitation period, the defendant shall be liable to compensate the plaintiff for tort or default," and made a statement at the preparatory date for pleading on December 18, 2009, which included that "the plaintiff shall be liable to compensate for damages due to tort or default," and added the previous claim for the amount of the takeover of this case to a preliminary claim due to tort or default while maintaining the primary claim as it is, and the court below ruled that the claim for the amount of the takeover of this case was dismissed from the judgment of first instance,

However, even if the primary claim was dismissed in the first instance court, if the conjunctive claim added at the lower court is groundless, the lower court shall separately render a decision to dismiss such conjunctive claim. Nevertheless, the lower court’s decision to dismiss an appeal on the grounds of the same reasoning as the judgment of the first instance and its conclusion is erroneous as it erred in the misapprehension of the legal doctrine on the preliminary consolidation of the newly added claims, and as such, the lower court’s decision to correct it ex officio.

3. Conclusion

Therefore, the part of the judgment of the court below concerning the conjunctive claim is reversed. Since this part is sufficient for this court to directly judge, it is decided to see in accordance with Article 437 of the Civil Procedure Act. The plaintiff's conjunctive claim added at the court below's above reversed part is all dismissed, and the remainder of the appeal is dismissed. The costs of the court below and the costs of the appeal are assessed against the losing party, including the part concerning the supplementary intervention. It is so decided as per Disposition

Justices Jeon Soo-ahn (Presiding Justice)