Where the defect of a newly constructed building is not important and excessive expenses are required for its repair, whether the contractor may claim for the repair of the defect or damages in lieu of the contractor (negative), and in such cases, the scope of the ordinary damages suffered by the contractor

In the contract for new construction of a building, where the defects of a building newly built by a contractor are not important and excessive expenses are required at the same time, the contractor may not claim compensation for the defect repair or damages in lieu of the defect repair, and may claim compensation for damages caused by such defects only. In such cases, unless there are special circumstances, the difference between the exchange value of the object and the current state of the defect where the contractor executes the construction without defects, and the damages caused by mental distress arising from the use of the defective object may be compensated as special damages only if the contractor has known or could have known such circumstances.

Articles 67, 390, and 393 of the Civil Act

Supreme Court Decision 95Da24975 delivered on May 14, 1996 (Gong1996Ha, 1841 delivered on June 11, 1996) 95Da12798 delivered on June 11, 1996 (Gong1996Ha, 2106)

Korean Comprehensive Construction Co., Ltd. (Attorney Lee Im-soo, Counsel for defendant-appellee)

[Judgment of the court below] Defendant 1 and one other (Attorney Yoon Young-soo, Counsel for the plaintiff-appellant)

Seoul High Court Decision 95Na31357 delivered on September 11, 1996

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of appeal (the grounds of appeal on the date Defendant completed the period expired are examined to the extent of supplement in case of the grounds of appeal).

1. As to the ground of appeal No. 1 on the date of completion of the defendant's reinstatement and the date of completion

The court below judged that the contractor for the construction work of this case is not the date of completing the construction work of this case, but the plaintiff. If we review the relevant evidence by comparing it with the records, the above judgment of the court below is just and it cannot be viewed that there is an error of violation of the rules of evidence

2. As to the ground of appeal No. 2 by Defendant Young-gu

Article 67(1) of the Civil Act provides that "if there is a defect in the part completed before the completion or completion, the contractor may claim for the repair of the defect within a reasonable period of time. However, this shall not apply where excessive expenses are required for the repair of the defect." Paragraph (2) of the same Article provides that "if the defect is not important, the contractor may claim damages in lieu of or for the repair of the defect." Thus, where the defect is not important and the excessive expenses are needed at the same time, the contractor may not claim damages in lieu of the repair of the defect or for the repair of the defect and only claim for compensation for the damage caused by the defect. In such a case, unless there are special circumstances, the difference between the exchange value of the object and the present condition of the defect if the contractor executes the work without any defect, and the mental damage caused by the use of the defective object may be compensated as special damage only where the contractor has known or could have known such circumstances (see, e.g., Supreme Court Decision 193Da15484, Apr. 195, 1996).

The court below determined to the effect that, after the plaintiff actually constructed a stairs that are built by the plaintiff to a stone string, it was constructed with a stone string, and then built it with a stone string string and glass which fall short of the design drawing, the difference between the exchange value of the building of this case and the exchange value of the building of this case in the present situation when the above stairs and windows were constructed with the design drawing is insufficient, while the difference between the exchange value of the above stairs and the present state when the above stairs and windows were constructed with the design drawing is too excessive, the damage amount suffered by the defendant's right as the contractor due to the above defect is reasonable to determine the difference between the above exchange value and the above exchange value. In light of the evidence and the legal principles as seen above, the above judgment of the court below is just, and there is no error of law in the misapprehension of legal principles as discussed in the judgment below. There is no ground to provide guidance.

3. As to the ground of appeal No. 3 by Defendant Cho Young-young

In light of all the circumstances indicated in the records, such as the contents of the construction contract of this case, the motive for the agreement for delay, the presumed to have actually occurred, the estimated amount of damages, the transaction practices, the Plaintiff’s lawsuit seeking damages due to the occurrence of dispute with the owner of an adjacent building, and the delay of the completion of the building of this case, etc., the court below’s measures to reduce the amount of the liquidated damages to be paid to the same Defendant in accordance with the agreement for delay among the Defendant’s uniforms are acceptable, on the ground that the Plaintiff was excessively excessive in the amount of the liquidated damages to be paid to the same Defendant according to the agreement for delay among the Defendant’s uniforms. As discussed in the judgment of the court below, there was no error of law by misapprehending

4. As to the ground of appeal No. 4 by Defendant Young-gu

According to the reasoning of the judgment below, since it is evident that the date of completion of the defendant was not recognized as the plaintiff's representative, the court below did not err in the misapprehension of the reasons, as discussed in the judgment below that only KRW 171,00,000 which was actually delivered to the plaintiff out of KRW 181,00,000 which was actually delivered to the defendant from the defendant's uniforms.

5. As to the ground of appeal No. 2 on the date Defendant completed

According to the records, the judgment of the court below that the plaintiff lent gold 28,000,000 won to the defendant completion date is acceptable. Thus, there is no violation of law as discussed in the judgment below.

6. As to the ground of appeal No. 3 by Defendant Completion Date

The Plaintiff’s assertion that set off the Plaintiff’s loan claim against the Defendant’s loan credit and the Defendant’s loan credit date constitutes a legitimate ground for appeal as it was first asserted by the same Defendant in the first instance. Therefore, there is no ground for

7. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeong Jong-ho (Presiding Justice)