[1] The scope of defects that can claim damages in lieu of defect repair against a person who constructed and sold an aggregate building under the Housing Act amended by Act No. 7520 of May 26, 2005 and the Housing Act amended by Act No. 7520 of May 26, 2005, and the provisions on the basis thereof

[2] In a case where Gap corporation sought damages in lieu of defect repairs against Gap corporation, the case holding that Gap corporation is liable for warranty liability under Article 9 of the Act on the Ownership and Management of Aggregate Buildings, in a case where Gap corporation is liable for warranty against Gap corporation as to defects that occurred prior to the date of usage inspection, defects such as erroneous construction and incomplete construction, etc., and defects that occurred prior to the expiration date of warranty liability period from the date of usage inspection

[1] The Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 7502, May 26, 2005; hereinafter "the amended Housing Act") and the Housing Act (amended by Act No. 7520, May 26, 2005; hereinafter "the amended Housing Act") differ in legislative purpose, contents of the liability for warranty, kinds and scope of defects subject to the liability for warranty, the right holder and obligor entitled to estimate the liability for warranty, the period of exercise of the right to estimate the liability for warranty, etc. Therefore, the right to claim for defect repairs and the right to claim damages in lieu of the defect repairs under Article 9 of the amended Aggregate Buildings Act and the right to claim damages arising from the defect defects under Article 46 of the amended Housing Act may be independently exercised: Provided, That the proviso of Article 6 of the amended Aggregate Buildings Act (amended by Act No. 466, Apr. 10, 1984; hereinafter referred to as "the amended Housing Act") provides for the liability for warranty and damages arising from defects within the amended period prescribed by Presidential Decree No. 46 days.

[2] In a case where Gap corporation filed a claim for damages in lieu of defect repair against Gap corporation as to the defect that occurred prior to the date of usage inspection on the apartment constructed and sold by Gap corporation, or the defect that occurred prior to the expiration date of the warranty liability period from the date of usage inspection, the case holding that Gap corporation is liable for warranty liability under Article 9 of the Act on the Ownership and Management of Aggregate Buildings against Gap corporation as to the whole defect that occurred in the apartment, and the council of occupants' representatives claims for the performance of the above claim for damages from the owner of the apartment, on the grounds that Gap corporation is liable for the warranty liability under Article 9 of the Act on the Ownership and Management of Aggregate Buildings

[1] Article 9(1) of the Act on the Ownership and Management of Aggregate Buildings, Article 6 of the Addenda ( April 10, 1984), Article 46(1) and (3) of the Housing Act / [2] Article 9(1) of the Act on the Ownership and Management of Aggregate Buildings, Article 6 of the Addenda ( April 10, 1984), Article 46(1) and (3) of the Housing Act

C. The council of occupants' representatives (Law Firm Macro, Attorneys male Won-won et al., Counsel for the plaintiff-appellant)

Korea Land Trust Co., Ltd. (Law Firm Han new, Attorney Lee Jae-ho, Counsel for defendant-appellant)

Seoul High Court Decision 2010Na35680 decided November 12, 2010

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the assertion of misapprehension of legal principles as to the claim for damages in lieu of defect repair

A. Article 9(1) of the Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 7502, May 26, 2005) provides that "the provisions of Articles 67 through 671 of the Civil Act shall apply mutatis mutandis to the warranty liability of a person who constructs and parcels out a building under Article 1," and Article 6 of the Addenda (amended by Act No. 3502, Apr. 10, 1984) provides that "Special provisions of the Housing Act on the methods and standards for the management of aggregate housing shall be effective unless they conflict with this Act and undermine the basic rights of sectional owners: Provided, That the warranty liability and defect repair liability of apartment houses shall be governed by the provisions of Article 46 of the Housing Act, and Article 46(1) of the Housing Act (amended by Act No. 7520, May 26, 2005) provides that "the project owner of an apartment building shall be liable for damages arising from the defect in the structure of the apartment building within the scope of 10-year period prescribed by Presidential Decree."

The amended Aggregate Buildings Act and the amended Housing Act vary between legislative purpose, contents and scope of the liability for warranty, the type and scope of the defect that is the object of the liability for warranty, the right holder and his/her obligor, and the period of exercise of the right to estimate the liability for warranty. Therefore, the amended Aggregate Buildings Act and the amended Housing Act shall be entitled to independently exercise the right for damages arising from the defect repair claim and the defect repair claim under Article 46 of the amended Housing Act and the right for damages arising from the defect repair claim under Article 46 of the amended Housing Act. As seen above, Article 6 proviso of the amended Aggregate Buildings Act provides that "the liability for warranty of a apartment house shall be governed by the provisions of Article 46 of the amended Housing Act with respect to the defect repair," and Article 46 of the amended Housing Act recognizes the liability for warranty only when the defect prescribed by Presidential Decree occurred within the period of usage inspection or use approval (hereinafter referred to as "use inspection") of the apartment house, and Article 46 of the amended Housing Act recognizes the liability for warranty if the defect is not within the period prescribed by Presidential Decree.

B. According to the reasoning of the lower judgment and the record, the following circumstances are acknowledged. (1) The Co-Defendant 1 Co-Defendant 2, Ltd. (hereinafter “Buwon”) and the lower court agreed to jointly promote the instant new apartment construction project around March 2004, and concluded a trust contract with the Defendant for the construction of the instant apartment. (2) On October 27, 2006, the instant apartment was inspected on the usage inspection as shown in the attached Form of the first instance judgment cited by the lower court, and there were defects such as defects that occurred before the date of the usage inspection or erroneous construction, etc., and Article 46 of the Housing Act, which occurred before the date of the usage inspection, was defective. (3) The Plaintiff filed a lawsuit claiming damages against the Defendant in lieu of the defects of 177 households among the instant apartment buildings pursuant to the Housing Act, etc., and the Plaintiff’s right to claim damages against the Defendant under Article 170 of the said Act, which occurred before the expiration of the above usage inspection period, on the ground that the Plaintiff did not have any special reasons attributable to the instant sectional owner’s right to claim for damages.

C. According to the above legal principles and factual relations, the above sectional owners may claim against the defendant for damages in lieu of defect repair in accordance with Article 9 of the amended Aggregate Buildings Act, and on the other hand, the plaintiff's claim for damages in lieu of defect repair in accordance with Article 9 of the amended Aggregate Buildings Act is clear from the sectional owners of 177 households of the above apartment. Thus, the judgment of the court below which received part of the plaintiff's claim is just. The court below stated the ground for the claim for damages in this case under Article 46 (1) and (3) of the amended Aggregate Buildings Act, which is not Article 9 of the amended Aggregate Buildings Act, is not Article 9 of the amended Aggregate Buildings Act, but Article 46 (1) and (3) of the amended Housing Act, which does not affect the decision

This part of the ground of appeal is without merit, and it is not acceptable on the premise that the amended Aggregate Buildings Act excludes the application of the amended Aggregate Buildings Act, and only the amended Housing Act and subordinate statutes apply to the claim for damages in lieu of defect repair of the apartment of this case.

2. As to the assertion on the waiver of warranty warranty right under the Aggregate Buildings Act

The defendant asserts that, upon the termination of the trust contract of this case under Article 24 subparagraph 1 of the trust contract of this case, the defendant agreed to deliver the apartment owned by Duuwon to Duuwon in the present condition, which constitutes a waiver agreement on the right of warranty for defects.

However, this is only asserted in the final appeal, and it cannot be a legitimate ground of appeal, and it cannot be deemed that the two parties have renounced the right to demand a warranty against defects only with the above agreement of the defendant's assertion. The argument in the grounds of appeal on this part cannot be accepted.

3. As to the assertion of misapprehension of legal principles as to the obligor of defect liability under the Aggregate Buildings Act

According to the reasoning of the judgment below, the facts that all legal procedures, such as building permission, were conducted in the name of the defendant in the construction of the apartment of this case, and the supply contract prepared in the course of sale of the apartment of this case is the seller as the defendant, and the name of the two members is not specified in the contract. Thus, not the two members, but the defendant, who constructed and sold the apartment of this case, bears the warranty liability under Article 9 of the amended Aggregate Buildings Act.

Therefore, we cannot accept the allegation in the grounds of appeal purporting that, as a person who actually constructed and sold the apartment of this case, the two members shall bear the warranty liability.

4. As to the assertion of violation of the rules of evidence and misapprehension of the legal principle as to whether defect repair costs are included in trust expenses

The court below rejected the defendant's defense of set-off on the following grounds: Article 17 of the Trust Contract of this case is merely the purport that the beneficiary bears all expenses incurred in the trust property during the execution of the trust business; and the defect repair expenses are borne by the contractor for the construction project in the construction contract relationship with the contractor for the construction project or by the project proprietor for the sale of the building to the tenant of the apartment house; in light of the fact that the expenses incurred in the repair, preservation, and improvement of the trust property (Article 17 (1) 4) stipulated in the trust contract of this case cannot be included in the expenses incurred in the repair, preservation, and improvement of the apartment property; and therefore, the two members are not obliged to pay the expenses incurred in the repair of the defects against the defendant. In light of the records, the

The Supreme Court precedents cited by the Defendant in the reference document are different from this case, and it is inappropriate to invoke this case.

5. Conclusion

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 Kim Yong-deok (Presiding Justice)