2010Da65436 Compensation, etc. (as a result),

A person shall be appointed.

Attorney Zi-chul et al.

1. Sambu Co., Ltd.:

2. Sch construction company;

3. B of the bankruptcy trustee, who is a bankruptcy trustee for the construction corporation following the bankrupt.

Attorney Kim Jae-soo et al.

4. Treatment and construction of stock companies;

Law Firm D

5. Korea Housing Guarantee Corporation;

Defendant 2 and 5 Law Firm E

Daejeon High Court Decision 2007Na5050 Decided July 2, 2010

February 28, 2013

The part of the judgment of the court below against Defendant Housing Guarantee Co., Ltd. is reversed, and that part of the case is remanded to Daejeon High Court.

The Plaintiff’s remaining appeals against the Defendants except for Defendant Korea Housing Guarantee Co., Ltd. are all dismissed.

The costs of appeal between the remaining Defendants and the Plaintiff except for Defendant Korea Housing Guarantee Co., Ltd. are assessed against the Plaintiff.

The grounds of appeal are examined.

1. Part on the remaining Defendants except for Defendant Housing Guarantee Co., Ltd. (Ground of appeal Nos. 1 and 2)

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 exclusion period, which is a judicial or non-judicial exercise period, the warranty right to warranty against defects is naturally extinguished. As regards concrete structures such as apartment, the proviso of Article 671 (1) of the Civil Act is applied to such concrete structures, and the warranty period is ten years after delivery (see Supreme Court Decision 2008Da8368, Jan. 14, 2010, etc.).

Meanwhile, barring special circumstances, the right to demand a security under Article 9 of the former Act belongs to the owner of an aggregate building. Although Article 38 of the former Housing Construction Promotion Act (wholly amended by Act No. 5908, Feb. 8, 1999; hereinafter the same shall apply) and Article 16 of the former Decree on the Management of Multi-Family Housing (wholly amended by Presidential Decree No. 16069, Dec. 31, 1998; hereinafter the same shall apply) grant the owner's right to demand a compensation for defects to the business entity of the multi-family housing under the former Housing Construction Promotion Act in lieu of the owner's right to demand a compensation for defects under Article 20 of the former Act, the purpose of this right is to set the criteria for prompt repair of defects as the defect warranty bond by setting the procedure, method and period of defect repair of the multi-family housing at an administrative level, it cannot be deemed that the owner's right to demand a compensation for damages under Article 20 of the former Act can not be seen as being exercised within the period of the defect repair.

The court below determined that the owner's right to claim damages against the defendant Construction Company (other than the defendant Housing Guarantee Co., Ltd.; hereinafter referred to as the "Defendant Construction Company"), which was transferred by the plaintiff, has ceased to exist within 10 years from March 5, 2007, since the proviso of Article 671 (1) of the Civil Act applies to the apartment and concrete structures of this case, and its warranty period is ten years after delivery, and it cannot be deemed that the owner's right to claim damages against the apartment of this case was exercised as to the apartment of this case, since the plaintiff did not exercise the right to claim damages against the owner's owner's right to claim damages against the plaintiff, even though the plaintiff's right to claim damages against the owner's company (excluding the defendant Housing Guarantee Co., Ltd.; hereinafter referred to as "the defendant Construction Company"), was not transferred to the council of occupants' representatives pursuant to the provisions of Article 46 (2) of the Housing Act and Article 5 (2) of the Enforcement Decree of the Housing Act.

In light of the above legal principles and records, such judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there are no errors in the misapprehension of legal principles as to the exclusion period of the exercise of the right to claim damages in lieu of defect repairs under

2. Part on Defendant Housing Guarantee Co., Ltd. (Ground of appeal No. 3)

A. In full view of the provisions of Article 38(15) of the former Housing Construction Promotion Act, Articles 16(2) and (5), and 17(1), (2), and (4) of the former Decree on the Management of Multi-Family Housing, the warranty bond deposited by the business entity under the former Housing Construction Promotion Act and the former Decree on the Management of Multi-Family Housing shall be deemed as performing the repair of defects to the council of occupants’ representatives or as guaranteeing the obligation to pay the repair cost, and the same applies to the case where the warranty bond is deposited in the letter of guarantee issued by

On the other hand, the right to claim damages, which is recognized as a warranty right under the old Aggregate Buildings Act, is special.

Unless there exist any circumstances, a sectional owner's right is vested in the council of occupants' representatives, and the rights held by the council of occupants' representatives under the former Housing Construction Promotion Act and the former Decree on the Management of Multi-Family Housing are only the rights to file a claim for the performance of defect repair against the project undertaker, and no right to file a claim for damages in lieu thereof is recognized. In addition, the right to claim a deposit against the Korea Housing Guarantee Corporation based on the former Housing Construction Promotion Act and the former Decree on the Management of Multi-Family Housing has the nature of the guaranteed obligation of the project undertaker as the main obligation of the project undertaker's defect repair obligation, and it is irrelevant to the right to claim a compensation for damages by the sectional owners under the former Act on the Management of Aggregate Buildings. In other words, the right to claim for damages by the sectional owners under the former Act on the Management of Aggregate Buildings, the former Housing Construction Promotion Act

13. Supreme Court Decisions 2009Da23160 Decided March 24, 201, Supreme Court Decisions 2009Da34405 Decided March 24, 201, etc.). Therefore, even if a sectional owner’s claim for damages in lieu of defect repairs against a person who constructed and sold an aggregate building under Article 9(1) of the former Aggregate Buildings Act and Article 667 of the Civil Act ceases to exist beyond the limitation period, the council of occupants’ representatives cannot be deemed to have extinguished accordingly the defect repair claim against the project owner under Article 38(14) of the former Housing Construction Promotion Act and Article 16(2) of the former Decree on the Management of Multi-Family Housing, or the defect repair guarantee claim against the housing guarantee company against which the business owner guaranteed the obligation to pay defect repair costs

B. The court below rejected the plaintiff's claim against the defendant Housing Guarantee Co., Ltd. on the ground that the defendant Housing Guarantee Co., Ltd.'s obligation as the guarantor of the defendant Housing Guarantee Co., Ltd was extinguished due to the lapse of the exclusion period, since the designation authority and the council of occupants' representatives set the name of the deposit of the defect warranty bond in the old apartment management order have substantial interest in the repair of defects, not because the usage authority, etc. have a substantial interest in the construction of the defect, but the management authority for the defect warranty bond only for the prompt repair of the defects for the sectional owners as the defect warranty bond in the administrative aspect. Thus, since the damages liability of the defendant Construction Co., Ltd., which is the principal debtor of the sectional owners in this case was extinguished by the limitation period, since the obligation of the defendant Housing Guarantee Co., Ltd. as the guarantor of the defendant Housing Guarantee Co., Ltd. was extinguished by the limitation period. However, in light of the above legal principles, even if the plaintiff's claim for damages in lieu of the defect warranty against the defendant Construction Co.

Nevertheless, under the premise that the principal obligation guaranteed by the Defendant Korea Housing Guarantee Corporation is the liability for damages against the Defendant Construction Company’s sectional owners, the lower court determined that the Plaintiff’s claim for defect liability against the Defendant Korea Housing Guarantee Corporation is extinguished in accordance with the doctrine of influentness as long as the claim for damages against the Defendant Construction Company was extinguished. In so doing, the lower court erred by misapprehending the legal doctrine as seen earlier, which affected the conclusion of the

The ground of appeal on this point is with merit.

3. Conclusion

Therefore, the part of the judgment of the court below against Defendant Housing Guarantee Co., Ltd. is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining Defendants except for Defendant Housing Guarantee Co., Ltd. are all dismissed. The costs of appeal between the remaining Defendants except for Defendant Housing Guarantee Co., Ltd. and the Plaintiff are assessed against the losing Plaintiff. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-dae

Justices Yang Chang-soo

Justices Go Young-young

Justices Kim Chang-suk