[1] The case reversing the judgment of the court below which applied the Housing Act amended pursuant to Article 1 (3) of the Addenda to the Housing Act (amended on May 26, 2005), which became null and void due to the Constitutional Court's decision of unconstitutionality, setting the warranty period of defect repair liability of the apartment house which

[2] The scope of a guarantee object and the period of defect repair liability in a contract for a mandatory defect repair contract for the portions of proof-stress structures of a collective housing with a guarantee period of ten years

[1] Article 46 of the former Housing Act (amended by Act No. 7600 of July 13, 2005), Article 46 of the Addenda (amended by Presidential Decree No. 7600 of May 26, 2005) / [2] Article 38 (14) of the former Housing Construction Promotion Act (amended by Act No. 5908 of February 8, 1999) (see current Article 46 (1)), Article 15 (see current Article 46 (2) of the Housing Act), Article 46 (3) of the former Enforcement Decree of the Housing Construction Promotion Act (amended by Presidential Decree No. 15598 of Dec. 31, 197), Article 43-5 (1) 1 of the former Enforcement Decree of the Housing Construction Promotion Act (amended by Presidential Decree No. 10667 of May 26, 2005), Article 38 (14) of the former Housing Construction Promotion Act (amended by Act No. 5908 of July 19, 1997 of the current Enforcement Decree of the Housing Act / [see current Article 97 (197) of the Enforcement Decree]

[2] Supreme Court Decision 99Da69662 delivered on February 8, 2002 (Gong2002Sang, 650) Supreme Court Decision 2007Da83908 Delivered on February 26, 2009 (Gong2009Sang, 407)

Plaintiff’s representative meeting (Attorney Park Hong-hoon et al., Counsel for the plaintiff-appellant)

Korea Housing Guarantee Co., Ltd. (Law Firm Gyeong & Yang, Attorneys Lee Lee-soo et al., Counsel for defendant-appellant)

[Defendant-Appellant] The Bankruptcy Trustee Co., Ltd., and one other (Law Firm Haok, Attorneys Lee Dong-soo et al., Counsel for defendant-appellant)

Seoul High Court Decision 2006Na104329 decided January 30, 2008

The judgment below is reversed and the case is remanded to Seoul High Court.

Before determining the grounds of appeal, this paper examined ex officio.

According to the reasoning of the judgment below, the court below, as a council of occupants' representatives composed of the plaintiff's ○○○ apartment 654 households newly constructed and sold by the non-party 1 corporation (hereinafter "the apartment of this case"), sought reimbursement of expenses incurred in the repair of defects arising from the apartment of this case pursuant to the obligatory defect repair contract for the apartment of this case issued by the defendant against the defendant, on the ground that the Housing Act was amended by Act No. 7520 on May 26, 2005, while the lawsuit of this case was pending in the court of first instance pursuant to Article 7520 of the Addenda to the Housing Act, set the period for defect repair liability for the defects arising from the apartment of this case by applying the Housing

However, on July 31, 2008, the Constitutional Court rendered a decision that "(3) of the Addenda to the Housing Act (amended by Act No. 7520, May 26, 2005) is in violation of the Constitution" by ruling No. 2005Hun-Ga16 on July 31, 2008. Therefore, in determining the warranty period for defects in the apartment of this case, the court below applied the Housing Act amended by Article 3 of the Addenda to the Housing Act, which lost its effect as the above unconstitutional decision, as it is unlawful, and thus, cannot avoid reversal in this respect.

However, according to the facts duly established by the court below, the non-party 1 corporation did not have a duty to maintain the defects under Article 38 (15) of the former Housing Construction Promotion Act (amended by Act No. 5908, Feb. 8, 1999; hereinafter the same shall apply) and Article 17 of the former Decree on the Management of Multi-Family Housing (amended by Presidential Decree No. 16069, Dec. 31, 1998; hereinafter the same shall apply) between the defendant 1 and the warranty under Article 38 (15) of the same Act and the warranty warranty under Article 9 of the former Decree No. 196 of the Housing Construction Promotion Act (amended by Presidential Decree No. 1696, Jun. 29, 195; hereinafter the same shall apply). The warranty warranty period of the non-party 1 corporation is not limited to the warranty warranty period of the non-party 1 corporation and the warranty warranty period of the non-party 1 corporation is not limited to the warranty warranty period of Article 197

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)