Beginning, the council of occupants' representatives (Attorneys Shin Jae-ho et al., Counsel for the plaintiff-appellant)

Korea Housing Guarantee Co., Ltd. (Law Firm Yuil, Attorneys Jeong Ho-ro et al., Counsel for the defendant-appellant)

May 4, 2012

1. The defendant shall pay to the plaintiff 183,60,000 won and 101,000,000 won among them, 6% per annum from February 16, 2011, 82,600,000 won per annum from March 22, 2012 to May 17, 2012, and 20% per annum from the next day to the day of full payment.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Basic facts

A. The Plaintiff is an autonomous management body that is composed of the occupants to manage three 212 units, 1, 3, 212 units (hereinafter “the apartment of this case”) in the calculation of the location of Macheon-si ( Address omitted), and the integrated construction company (hereinafter “the integrated construction company”) is a project proprietor who constructed the apartment of this case.

B. On February 7, 2006, the Defendant entered into each of the following contract for warranty of defects (hereinafter “each of the instant guarantee contracts”) with respect to the obligation to repair the defects of the instant apartment of construction, which is a comprehensive construction for the calculation of February 7, 2006, with the guarantee creditor as the Kancheon market:

The guarantee period of No. 10122206-2001-000909 on February 28, 2011 to February 27, 201 (5) 91,800,000 from February 28, 2011, 200 201-2022206-2006-201-000905 from February 28, 2006 to February 27, 2016 (10 years) 91,80,000

In the column of each guarantee contract of this case, the term "special engineer claim" states that "no guarantee shall be liable for any defect that occurred prior to the period of guarantee, and the guarantee creditor shall be deemed to be changed to the council of occupants' representatives when the council of occupants' representatives is organized under Article 60 (2) of the Enforcement Decree of the Housing Act." According to the terms and conditions of the warranty contract, the term "guarantee accident" refers to the case where the principal debtor fails to perform the repair of a defect without any justifiable reason in spite of the guarantee creditor's claim for the repair of a defect that occurred within the period of liability for each type of work as prescribed in attached Table 6 and 7 of the Enforcement Decree of the Housing Act (Article 1 subparagraph 5). In the event of a guarantee accident, the defendant performs the repair of a defect to the guarantee creditor or

C. On March 21, 2006, a pre-use inspection was conducted on the apartment of this case, and thereafter, the Plaintiff, an autonomous management organization of the apartment of this case, was organized, and the secured creditor of each of the instant guarantee contracts was changed to the Plaintiff.

D. In the construction of the apartment of this case, defects such as rupture, water leakage, etc. have occurred in the section for common use and exclusive use of the apartment of this case due to defective construction in constructing the apartment of this case, and thereby, the apartment of this case has caused trouble in function, aesthetic view, or safety.

E. From Oct. 2010 to Nov. 29, 2010, the Plaintiff requested repair of the instant apartment from Oct. 2010 to Nov. 29, 2010, the Plaintiff still has the same defect as that indicated in the summary sheet by the annexed Table of Defects (based on the 1st section of section for common use) (hereinafter “instant defect”) in the instant apartment because the repair was not properly performed. In order to repair the apartment, the Plaintiff is in charge of the same amount as indicated in the following table on the premise that the repair was to be executed after the rupture of the outer wall as of Jan. 31, 201, when the instant lawsuit was filed, at the time of the filing of the lawsuit.

Section - Section - Section - - Section - - Section - Section - - Section 14,00,336, 167 for -- Section -- Section 38,932,804, - Section 332,804 -- Section -- Section 171,334,34,174, 204, 201, 934, 79771 for 10 years of 5 years of 15 years of 2 years of 3 years of 5 years of 2 years of 171,334, 174, 201, 934, 7971, after the pre-use inspection.

[Ground of recognition] Facts without dispute, each entry of Gap evidence 1 to 5 (including each number), the result of the appraisal of the non-party's defects, the purport of the whole pleadings

2. Occurrence of guarantee liability;

A. According to the results of the appraisal of defects and the purport of the entire pleadings by the Nonparty, the instant defects may be acknowledged to have occurred after March 21, 2006, which is the date of the inspection of the use of the instant apartment. The Plaintiff requested a comprehensive construction and the Defendant to repair defects from October 201, 2010, which was five years before the date of the inspection of the use of the instant apartment, as seen earlier. Thus, the instant defects are confirmed to have occurred within the respective warranty period (five or ten years).

Therefore, as a guarantor of the defect repair obligation under each of the instant guarantee contracts, the Defendant is obligated to pay the Plaintiff the warranty bond equivalent to the repair cost of each of the instant apartment within the scope of each guaranteed amount and the respective warranty period, as prescribed by each of the instant guarantee contracts.

B. As to this, the defendant asserts that the defect of the portions of proof-stress structure of the 5th year (to the floor, floor, and roof) and 10 years (to the 5th year (to the 10th year) of the Enforcement Decree of the Housing Act, which was in force at the time of the inspection of the use of the apartment of this case, is the defect of "where the apartment house in question is collapsed due to the defect in the 10th (to the 10th)" and "where it is determined that the apartment house in question is likely to collapse as a result of the safety diagnosis," and that the defect of this case classified by the appraiser as the 5th or 10th defect is all the defect of this case, so long as the apartment of this case is not likely to collapse or collapse, the defendant's defect liability liability does not occur

In light of the above, if the defect in the portions of proof-stress structure for which the defect repair duty is recognized is considered to be collapsed or collapsed only when the apartment house is likely to collapse, it would result in leaving the defect in the portions of proof-stress structure, which are the most important part in the safety of the apartment house, without recognizing the repair duty until it is collapsed or collapsed, and the attached Table 6 of the Enforcement Decree of the Housing Act provides for the defect in the minor facilities rather than the structural defect in the apartment house, and it is unreasonable to impose the project undertaker the duty of defect repair even if it does not comply with the general defect to the extent that the function, tolerance, or safety of the apartment house is likely to interfere with the defect in the structure of the apartment house, the purport of the above provision is to impose the aggravated liability in light of the danger and importance of the defect in the portions of proof-proof structure, and it is reasonable to interpret that the defect liability liability is not limited only to the important defect such as the case where the apartment house is likely to collapse or collapse. Therefore, the defendant's assertion that the defect liability liability is unlikely.

3. Scope of guarantee liability; and

A. Limitation on liability

However, in light of the fact that the apartment of this case can cause natural aging phenomenon in the apartment of this case after about five years from the date of the usage inspection to the date of the appraisal of defects in this case, it is difficult to strictly distinguish the parts caused by natural aging phenomenon and construction errors among the defects in the apartment of this case, and the possibility that the defects have been expanded due to the plaintiff's management errors cannot be ruled out at all, the defendant's guarantee liability should be limited to 70% of the total cost of defect repair in accordance with the principle of fairness or the principle of good faith.

B. Scope of liability

As above, upon examining the amount of guarantee liability of the defendant, the defendant bears the guarantee liability only within the scope of the guaranteed amount of each guarantee contract of this case out of the amount reduced by 70% according to the ratio of the defect repair cost for each period of defect repair liability. Even if the cost of defect repair is reduced, it is obvious that the amount exceeds the guaranteed amount still exceeds the guaranteed amount, and therefore, it is recognized that the defendant

The guaranteed amount for the warranty period of the table in the main sentence (won) of February 28, 2006 from February 27, 201 to February 27, 201 171,334, 174, 119,93,921 (=171,334, 174 x 0.7 x 0.7) of February 28, 2006 to February 91, 2006 to February 91, 200,80,002, 201,934,7971, 354,357 x 07 x 0.7)

Therefore, the Defendant is obligated to pay to the Plaintiff damages for delay at each rate of KRW 183,60,000 per annum from February 16, 2011, which is the day following the delivery date of a copy of the instant complaint, and KRW 82,600,000 per annum from March 22, 2012, from March 17, 2012, which is the day following the delivery date of a copy of the instant complaint, to the Plaintiff, for the remainder of KRW 82,60,000,00 per annum from March 17, 2012, which is the day when the application for modification of the purport of the instant claim and the cause of the instant claim is delivered to the Plaintiff.

4. Conclusion

Therefore, the plaintiff's claim shall be accepted for the reasons and it is so decided as per Disposition.

[Attachment]

Judges Lee Jae-soo (Presiding Judge)