Where wastes are buried underground in the land purchased for the construction of apartment buildings, the case holding that there is any defect as the object of sale on such land.

The case holding that since the issue of defects in the object of sale should be determined on the basis of whether the object has a quality or condition ordinarily to meet the requirements at the time of sale and purchase, if a person operating a housing construction business purchases land for the purpose of constructing a high-rise apartment building on the ground, and the seller knew the purpose of purchasing such land, and the seller was well aware of a large quantity of general wastes in the underground part exceeding a majority of the land, and the large amount of expenses is required to be not less than six times as much as or more than six times as the general soil is taken out at the emission cost, and if it seems that the additional emission cost would have been deducted from the purchase price if he was aware of such circumstances at the time of the initial sale and purchase, the land is deemed to have a defect as the object of sale and purchase.

Article 580(1) of the Civil Act

Taesan Co., Ltd. (Law Office of Busan, Law Office, Attorney Kim Jae-chul, Counsel for the plaintiff-appellant)

Lee-gu et al. (Attorney Lee Jae-chul, Counsel for the plaintiff-appellant)

1. The defendants shall pay to the plaintiff the amount of 27,271,296 won with 5% per annum from October 6, 1995 to October 24, 1996, and 25% per annum from the next day to the day of full payment.

2. The costs of lawsuit shall be borne by the defendants.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Facts of recognition;

The following facts are not disputed between the parties, or there is no dispute between the parties, Gap evidence Nos. 1, 2, 3-1 through 4, Gap evidence No. 5, Gap evidence No. 7, Gap evidence No. 13, Eul evidence No. 14, Eul evidence No. 1-2, Eul evidence No. 1-1 and 2, the evidence No. 1-2, the witness Kim Ho, the result of this court's examination, and each fact inquiry into the Gyeonggi-do and Suwon-si, and there is no other evidence to reverse the above recognition.

A. At Suwon-si, Suwon-dong 365 1,224 square meters (hereinafter “the instant land”) was originally designated as an exclusive residential area under the urban planning, and only the construction of a building with two floors or less or a building with a height of not more than eight meters was possible. On May 17, 1994, the Suwon-si, upon a resolution by the urban planning committee as of May 30, 1994, filed an application for changing the use of the instant land into a general residential area where a high-rise building can be newly constructed in Gyeonggi-do. Accordingly, Gyeonggi-do, upon a resolution by the Gyeonggi-do urban planning committee as of September 16, 196 of the same year, made a decision to change the use of land of not more than 430,580 square meters from the instant land from an exclusive residential area to a general residential area, and publicly notified it as a public notification of Gyeonggi-do on June 194-296 of the same year.

B. On August 24, 1994, the Plaintiff Company engaged in the housing construction business, etc. purchased 1/2 of the shares in the land in this case from the Defendant Lee Young-gu for the purpose of constructing an apartment building on August 24, 1994, from the purchase of 429,20,000 won of the purchase of the shares in the land in this case, and completed a share transfer registration on September 23, 1994, from the Defendant Hong-ray for the purpose of purchasing 1/2 of the shares in this case on August 30 of the same year, and completed a share transfer registration on September 30 of the same year after purchasing the shares in the same amount as that of the land in this case on August 30 of the same year. The Defendants also acquired the entire land in this case.

C. On December 29 of the same year, after the above change of use was made with respect to the instant land, the Plaintiff Company filed an application for a construction permit to newly construct the first underground floor and the second 278 apartment units with the 20th apartment units with the 10th apartment units on the ground outside of the instant land at Suwon-si, and filed a construction report on April 20 of the same year after obtaining the business approval from Suwon-si on February 9, 1995.

D. Around May of the same year, the Plaintiff Company commenced the construction of the said apartment building, and around May of the same year, performed the construction of the ground for 5,601 square meters of the total site area of the said apartment building. Of the instant land, part of the land that performed the construction of the said ground, general wastes, such as vinyl, PP, and concrete sculptures, were buried in total in the underground of 1,728 square meters from 0.5 meters to 4 meters.

E. Article 14 of the former Wastes Control Act (amended by Act No. 4970 of Aug. 4, 1995), which was in force at the time, provides that a business operator who discharges general wastes in excess of the amount determined by the Presidential Decree, accompanied by his/her business activities, shall collect, transport, or dispose of general wastes in accordance with the standards and methods prescribed by the Presidential Decree, or entrust a general waste discharging business operator with the collection, transport, and disposal of general wastes. Article 6 of the Enforcement Decree of the same Act provides that a business operator subject to Article 14 of the same Act discharges general wastes at least once or discharges them more than one week through a series of series of construction works, operations, etc.

F. As seen above, the Plaintiff Company: (a) had the Development of Suwon Environment, Co., Ltd., a general waste disposal business entity, take out the general waste 1,728 cubic meters of the instant land from the surface of the instant land; and (b) paid the sum of KRW 28,512,00 (1,728 x 16,500) per 1 cubic meter of the waste from the total sum of KRW 16,50,000 per 1 cubic meter of the instant land; and (c) disbursed the sum of the ordinary waste cost, 31,936,896, which is the aggregate of the cost of taking out the instant general waste; and (d) the cost of taking out the general soil and sand, etc., which does not contain any general waste, KRW 2,700 per square meter.

2. Issues;

In order to construct a building on the land of this case, the Plaintiff was bound to dispose of wastes buried underground in accordance with the procedure under the Wastes Control Act, and the cost of disposal was required to an extent that it could not have been predicted in advance. Thus, in relation to the above sale and purchase of the land of this case, it constitutes a defect in the land of this case, which is the object of sale. Thus, the Defendants asserted that the Defendants seek compensation for damages equivalent to the above cost, which is the object of sale, for the removal and disposal of the above waste. As the Defendants merely sold the land of this case to the Plaintiff as before its land category, so long as it is possible to cultivate crops on the land of this case, it cannot be said that there is a defect in the land of this case. Furthermore, even if the above sale and purchase was conducted on the premise that the construction of the building on the land of this case was conducted on the land of this case, it cannot be said that the construction itself was impossible due to the mere fact that the waste was buried, and thus, it cannot be deemed that there was a defect in the object of sale.

3. Determination

The issue of whether the subject matter of sale was defective should be determined by considering the overall circumstances at the time of sale and purchase, such as the course and purpose of the sale. In particular, the Plaintiff Company engaged in housing construction business purchased the subject matter of this case, which was scheduled to change its use to a general residential area among the general residential areas already designated as an exclusive residential area under the Urban Planning Act, even though it was before its land category, for the purpose of constructing a high-rise apartment house on its ground, and the Defendants also known the purpose of purchasing the subject matter of this case. In the case of the subject matter of this case, a large quantity of general wastes exceeding a majority of 1,224 square meters from the above 1,728 square meters were buried under the underground of the subject matter of this case, and there was no choice but to discharge waste through a general waste disposal business operator pursuant to the above provisions of the Wastes Control Act, etc., and the expenses required to pay damages to the Plaintiff amount equivalent to or more than 6 times the above amount of the purchase and sale of the subject matter of this case as a matter of course.

Therefore, according to the above facts, if the plaintiff company knew that the above general wastes were buried in the underground part of the land of this case at the time of the above sale, it would be deemed that the part of the expenses incurred in removal of general soil and sand was deducted from the above sale price. Therefore, it would be reasonable to determine such excess expenses as the damages incurred by the plaintiff company due to the defect of the land of this case. The above expenses paid by the plaintiff company for removal of the above general wastes are reasonable. Thus, the defendants are liable to compensate the plaintiff for the above expenses. Accordingly, the defendant is ultimately liable to compensate the plaintiff for the expenses 4,665,60 won from the above expenses paid by the plaintiff for removal of the general soil and sand of this case (1,728 x 728 x 700) which were deducted from the expenses incurred in removal of the waste of this case from the underground part of the land of this case.

4. Defendants’ defenses

A. First of all, the Defendants asserted that the Plaintiff Company knew or could have known the fact that the above general wastes were buried in the underground part of the instant land through a field investigation at the time of the purchase of the instant land, and thus, it cannot comply with the Plaintiff’s claim for damages. Thus, the Defendants’ assertion that the Plaintiff Company knew or could have known the fact that the above general wastes were buried in the underground part at the time of the purchase of the instant land, is insufficient to recognize it solely with the statement of the video or the evidence No. 3 as to the video or the evidence No. 4, and there is no other evidence to acknowledge it. Thus, the Defendants’ defense is without merit.

B. Next, even though the Plaintiff Company had different knowledge of the fact that the waste was buried in the instant land at the time of the above sale, the Defendants knew of the fact that the above general waste was buried in the underground part of the instant land until December 29, 1994 at the time when the Plaintiff applied for the above construction permit at the latest, for the construction of a high-rise apartment, until December 29, 1994. Since the instant lawsuit was filed six months after the lapse of the exclusion period, the Defendants asserted that the Plaintiff Company could not respond to the Plaintiff’s claim since the Plaintiff Company had known of the fact that the above volume of general waste was buried in the instant land at the time of the above request for the construction permit, the fact that the fact that the fact was insufficient to acknowledge the fact that the Plaintiff Company did not have any other evidence to acknowledge it, and even if the Plaintiff Company knew of the above general waste landfill at the time of the above request for construction permit, the Plaintiff Company raised damages against the Defendant Company Nos. 2 and the Defendant No. 1 and No. 5 of this case No. 97 of this case had any other evidence No. 975.

5. Conclusion

Thus, the defendants are obligated to pay to the plaintiff the amount of 27,271,296 won and the amount of damages for delay at the rate of 5% per annum under the Civil Act from October 6, 1995 to October 24, 1996, which is the date of the decision from October 24, 1996, and from the next day to the date of full payment, 25% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings. Thus, the plaintiff's claim shall be accepted for the reasons for this decision as per Disposition.

Judges Goi-An (Presiding Judge)