[1] In a case where a construction supervisor confirms that a construction executor performed a construction work in accordance with the design documents, and finds any defect in the construction work performed by the construction executor in accordance with the design documents in the process of confirming whether the construction executor performed the construction work in accordance with the design documents, whether the construction executor must notify the construction owner so that such defect does not cause damage to the construction executor, and whether the construction executor bears the obligation to request correction or reconstruction from the construction executor (affirmative); and the standard for determining whether the construction supervisor failed to perform the obligation under the supervision contract as above; the relationship between the damages liability arising from the nonperformance of contractual obligation under the supervision contract by the construction supervisor and the damages liability arising from the contractor’s nonperformance of contractual obligation (=joint and several liability

[2] Where the defendant appealed against the judgment of the court of first instance that partially dismissed the plaintiff's claim, but the plaintiff did not file an appeal or incidental appeal, and the appellate court partly accepted the defendant's appeal and partly revoked part of the part against the defendant in the judgment of first instance and dismissed the plaintiff's claim against that part, whether the part against the plaintiff in the judgment of first instance against the plaintiff can be appealed (negative)

[1] According to Article 21(7) of the former Building Act (amended by Act No. 8852, Feb. 29, 2008; hereinafter the same), Article 19(6)1 of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 20722, Feb. 29, 2008); supervisory duties to be performed by a project supervisor include “verification as to whether the contractor performs construction works in conformity with design documents.” Furthermore, Article 21(2) of the former Building Act provides that where the contractor fails to perform construction in accordance with design documents, the project supervisor shall notify the project owner of whether the contractor performs construction works in accordance with the same manner as the contractor performs construction works, and shall request the construction supervisor to correct or rebuild the same defect after having notified the contractor thereof. In light of such provisions, the project supervisor is obliged to verify whether the contractor performs construction works in accordance with the design documents itself as design documents, and to notify the project supervisor of whether the construction implementer performed construction works in an independent manner with the project supervisor’s liability for reconstruction or alteration.

[2] In a case where the defendant appealed against the judgment of the court of first instance that partially dismissed the plaintiff's claim, but the part against the plaintiff in the judgment of first instance against the plaintiff is transferred to the appellate court due to the defendant's appeal, but is not subject to adjudication at the appellate court. If the appellate court partly accepted the defendant's appeal and partly revoked the part against the defendant in the judgment of first instance and dismissed the plaintiff's claim as to that part, it is limited to the part against the defendant in the judgment of first instance, and the part against the plaintiff in the judgment of first instance against the plaintiff in the judgment of first instance is not subject to adjudication at the appellate court, and this part is not subject to the plaintiff's appeal. Accordingly, the appeal as to the part

[1] Article 21(2) and (7) of the former Building Act (amended by Act No. 8852 of Feb. 29, 2008) (see current Article 25(3) and (8)), Article 19(6)1 of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 20722 of Feb. 29, 2008) / [2] Articles 415 and 422 of the Civil Procedure Act

[1] Supreme Court Decision 2012Da89320 Decided February 26, 2015 (Gong2015Sang, 522) / [2] Supreme Court Decision 98Da5357 Decided May 22, 1998 (Gong1998Ha, 1124)

Plaintiff 1 and one other (Attorney Jeong Chang-nam et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Jeon Soo-soo, Counsel for defendant-appellant)

Jeonju District Court Decision 2013Na11006 decided October 2, 2014

The part of the judgment of the court below concerning the claim for damages due to the Nos. 2 and 7 defects is reversed, and this part of the case is remanded to the Jeonju District Court. The plaintiffs' remaining appeals are dismissed.

The grounds of appeal are examined.

1. As to the claim for damages due to the defect Nos. 2 and 7 of the holding of the court below

A. According to Article 21(7) of the former Building Act (amended by Act No. 8852, Feb. 29, 2008; hereinafter the same), Article 19(6)1 of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 20722, Feb. 29, 2008); supervisory duties to be performed by a project supervisor include “verification as to whether a contractor performs construction works in conformity with design documents and specifications”; and Article 21(2) of the former Building Act provides that, if a contractor fails to perform construction in accordance with design documents, the project supervisor shall notify the project owner of whether the contractor performs construction works in accordance with the same manner as the project owner performs construction works, and shall request the construction supervisor to rectify or rebuild the same defect after having notified the contractor thereof. In light of such provision, the project supervisor is obliged to verify whether the contractor performs construction works in accordance with the design documents per se and specifications, and to determine whether the construction supervisor is obligated to perform construction works in accordance with the same part as the project owner’s liability for reconstruction or alteration.

B. The lower court acknowledged the fact that the Plaintiffs, as the owner of the instant building, entered into a contract with the Kuwon Construction Co., Ltd. (hereinafter referred to as the “Dudwon Construction”) for the instant building extension construction, and entered into a design contract and supervision contract with the Defendant, an architect, and denied the Defendant’s liability for damages for the following reasons: (a) as to the part of the Plaintiffs’ claim for damages due to nonperformance under the supervision contract as to the defect

1) Although the Defendant is obligated to discover the number 2 and 7 defects in the judgment below, which are the defects in the modified construction, and notify the Plaintiffs and the Geumcheon Construction to correct them, it is difficult to view that the Defendant has a duty to prevent the above modified construction from sources in light of the size of the building in this case, the status and role of the Defendant, and the content

2) Even if the Defendant did not give such notice, if the Plaintiffs were to be liable for damages, it may be recognized that the 2/7 defect No. 2 and 7 defect in the holding of the lower court was repaired if such notice was given to the Defendant. There is no evidence to acknowledge this.

3) In ordinary cases, the project owner appears to be able to recover damages caused by the defect in the replacement construction from the contractor due to bankruptcy, etc., but where the contractor is unable to recover damages caused by the project owner’s failure to perform construction works due to bankruptcy, etc., if the project supervisor notified the project owner of the defect in the replacement construction, he/she may recover damages caused by offsetting against the project cost, etc., but if the project supervisor was unable to recover damages due to the failure to give such notice, he/she may be deemed liable to compensate the project owner for damages. However, in this case, there is no evidence to prove that the Defendant failed to notify the Plaintiffs of the defect Nos. 2 and 7 in the

C. However, we cannot accept the judgment of the court below for the following reasons.

1) Review of the reasoning of the lower judgment and the record reveals the following facts.

A) The instant extension construction is a construction connected to the existing building after the construction of an extension building of five stories above ground, which is a building area of 209.54 square meters and a total floor area of 816.46 square meters, adjacent to the existing building.

B) Since the Defendant concurrently held the position of the designer and supervisor as to the instant building extension construction, it performed supervisory duties during the period of performing the said construction with the drawings designed by the Defendant from August 15, 2007 to May 21, 2008.

C) Serial 2 defects in the holding of the court below are related to construction covering the upper floor of the fifth floor of an existing building and extension building, and design drawings are to be constructed with a double board of 0.8m thick, but the sub-design is to be constructed with a thickness of 0.8m. However, the sub-design construction was constructed with a blade of 0.6m thick with arbitrarily changing the size and material of the material.

D) Defect Nos. 7 in the holding of the court below is related to the construction of excreta sewage pipes under the floor of an extended building. While the design drawing is to be constructed as a PVC pipe of a diameter of 150 meters, the sub-construction of the sub-contractor arbitrarily changed the size of the material and constructed as a PVC pipe of a diameter of 100 meters. The size of the material constructed as a excreta sewage culvert can be confirmed by opening a sewage culvert.

E) On May 21, 2008, the completion date of construction of the building of this case, the Defendant prepared a report on completion of supervision as to the extension of the building of this case and delivered it to the Plaintiffs.

2) We examine the above facts in light of the legal principles as seen earlier.

In accordance with the supervision agreement on the extension of the building of this case, the Defendant confirmed whether the sub-construction was performed in conformity with the design drawing, and, in the process, found any defects in the non-construction or modified construction in accordance with the supervision agreement on the extension of the building of this case, notified the Plaintiffs so that they do not incur damages due to such defects, and bears the obligation to request the sub-construction to correct or rebuild the construction. The Defendant prepared the design drawing for the extension of the building of this case, and thus, deemed to have been well aware of the contents thereof. The defect No. 2 of the judgment of the lower court is the defect in the modified construction of materials and standards that can be confirmed on the rooftop of the building of this case, and the defect in No. 7 is a relatively small-scale construction. In light of the fact that the extension of the building of this case is a relatively small-scale construction, it is reasonable to view that the Defendant could easily discover the defect in No. 2, 7 in the process of supervising the extension construction of the building of this case. However, the Defendant bears the duty of supervision as to the Plaintiffs as to compensate for damages arising from breach of obligation.

3) Nevertheless, the lower court did not recognize the Defendant’s liability for damages as above against the Plaintiffs on its grounds as stated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on the liability for damages, causation, and vicarious joint and several liability, thereby adversely affecting the conclusion of the judgment

2. As to the claim for damages due to defects in Nos. 1, 3, 4, and 5 in the holding of the court below

Judgment ex officio is made.

A. In a case where the defendant appealed against the judgment of the court of first instance that partially dismissed the plaintiff's claim, but the part against the plaintiff in the judgment of first instance against the plaintiff is transferred to the appellate court due to the defendant's appeal, but it is not subject to adjudication at the appellate court. If the appellate court partly accepted the defendant's appeal and partly revoked the part against the defendant in the judgment of first instance and dismissed the plaintiff's claim as to that part, it is limited to the part against the defendant in the judgment of first instance, and the part against the plaintiff in the judgment of first instance against the plaintiff in the judgment of first instance is not subject to adjudication at the appellate court, and this part cannot be subject to the plaintiff's appeal. Therefore, the appeal against the part that was not subject to appeal among the plaintiff's appeal shall be dismissed (see Supreme Court Decision 98Da5357, May 22,

B. According to the records, the plaintiffs filed a lawsuit against the defendant for compensation for damages on the grounds of nonperformance of obligations under the supervision contract (However, the plaintiffs also asserted the nonperformance of obligations under the design contract as to the 8 defects as stated in the judgment below) with respect to the 1,2,3,4,5,7, and8 defects as stated in the judgment of the court below. The court of first instance has accepted the parts due to 2,7,8 defects as stated in the judgment of the court below and rendered a decision to dismiss the parts due to 1,3,4, and5 defects. As a result, only the defendant appealed against the defendant in the judgment of the court of first instance, the court below revoked the parts due to 2,7 defects as stated in the judgment of the court of first instance, and dismissed the plaintiffs' claims against the defendant, and dismissed the defendant's appeal against the parts due to 8 defects in the 1,4,

C. Examining these factual relations in light of the legal principles as seen earlier, the Plaintiffs’ appeal on the damages claim portion due to the defect Nos. 1, 3, 4, and 5 in the judgment of the court below is unlawful, since it is an appeal on the part not subject to the judgment of the court below because the Plaintiffs did not file an appeal or incidental appeal even though they lost the court of first instance.

3. Conclusion

Therefore, among the judgment of the court below, the part concerning the claim for damages due to the 2 and 7 defects in the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. The remaining appeals by the plaintiffs are unlawful, and it is so decided as per Disposition by the assent of all participating Justices

Justices Ko Young-han (Presiding Justice)