[1] Whether a management body established pursuant to Article 23(1) of the former Act on the Ownership and Management of Aggregate Buildings has a right to warranty against defects (negative in principle)

[2] In a case where the apartment management body filed a lawsuit seeking the cost of repair of the defect in the section for common use caused by the apartment, the case affirming the judgment below that the management body did not have the status to exercise the right to demand a warranty against the defect in the section for common use of the apartment at the time of filing the lawsuit, and that the management body submitted the application for alteration of the defect by acquiring the right to demand a warranty against the sectional owners, but the exclusion period for the exercise

[1] The right to claim damages in lieu of defect repairs under Article 9 of the former Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 6925, Jul. 18, 2003; hereinafter the "former Act"), namely, the right to claim warranty against defects, unless there are special circumstances, belongs to the purchaser or the present sectional owner, barring special circumstances. Thus, the management body established for the purpose of implementing the business of managing a building, site and attached facilities pursuant to Article 23(1) of the former Act shall not be deemed to have the right to claim warranty against defects, unless there are special circumstances, such as that the management body acquired the right by transfer to the sectional owner.

[2] In a case where the apartment management body brought a lawsuit seeking the cost of repair of the defect in the section for common use caused by the apartment complex, the case affirming the judgment below holding that the exclusion period of the exercise of the right to warranty against the defect in common use was exceeded since the management body was not in the position to exercise the right to warranty against the defect in common use at the time of filing the lawsuit, and the management body received the right to warranty against the defect in common use and submitted the application for alteration based on the right to warranty against the sectional owners, but the apartment was already delivered to the sectional owners, and the apartment was still

[1] Articles 9 and 23(1) of the former Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 6925 of Jul. 18, 2003) / [2] Articles 9 and 23(1) of the former Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 6925 of Jul. 18, 2003), Article 671 of the Civil Act

[1] Supreme Court Decision 2004Da37461 Decided December 9, 2004 (Gong2005Sang, 84) Supreme Court Decision 2009Da9539 Decided May 28, 2009

Jeon-ju Peace Co., Ltd. (Attorney Cho Young-young, Counsel for the defendant-appellant)

Korea Land and Housing Corporation (Law Firm, Attorneys Jeong Hong-sik et al., Counsel for the plaintiff-appellant)

Gwangju High Court Decision 2008Na1779 Decided August 25, 2011

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

The right to claim compensation for damages in lieu of defect repairs under 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 Act on the Ownership and Management of Aggregate Buildings"), i.e., the right to claim compensation for damages in lieu of defect repairs under 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 Act on the Ownership and Management of Aggregate Buildings") belongs to the buyer of an aggregate building or the present sectional owner, barring special circumstances (see Supreme Court Decisions 2004Da37461, Dec. 9, 2004; 2009Da9539, May 28, 2009). Thus, the management body established for the purpose of the management of building, site and attached facilities,

According to the reasoning of the judgment below, the court below determined that the plaintiff was not in the position of exercising the right of warranty against the defect in the common area of the apartment of this case at the time of the lawsuit of this case, taking into account the following circumstances: (a) the plaintiff decided to proceed with the lawsuit as to the defect in the apartment of this case before the lawsuit of this case; (b) the plaintiff's notification that "the main body of the lawsuit is the council of occupants' representatives with the delegation of the residents for the defect in the common area; and (c) the defect in the section of exclusive ownership is the sectional owners, i.e. the sectional owners, the apartment owners; and (d) the sectional owners requested the consent of the sectional owners; (e) there was no evidence to deem that the sectional owners delegated the right of warranty against the defect in the common area of this case to the council of occupants' representatives or the plaintiff; and (e) the plaintiff was not in the position of exercising the right of warranty against the defect in the common area of this case at the time of the lawsuit of this case; and (e) around May 13, 2009.

In light of the above legal principles and records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the ownership of the right to warranty against defects in common areas of an aggregate building, special circumstances where the management body can exercise the warranty against defects, or the exclusion period.

Therefore, the appeal is 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.

Justices Park Poe-dae (Presiding Justice)