[1] Whether a claim for damages related to defects that occurred in an apartment constitutes an indispensable co-litigation that should be filed by all sectional owners who have become the plaintiff (negative)

[2] Claim for damages by sectional owners under the Act on the Ownership and Management of Aggregate Buildings, the old Housing Construction Promotion Act and the council of occupants' representatives under the old Decree on the Management of Aggregate Buildings, and the right to claim for deposit

[3] In a case where Gap's council of occupants' representatives and sectional owners filed a claim for damages against Eul Co., Ltd., a project undertaker, by combining them with subjective and preliminary consolidations, and the council of occupants' representatives separately claimed for the payment of security deposit against the construction mutual aid association based on the defect liability contract, but the court below dismissed Eul's claim against Eul Co., Ltd., and partly accepted the claim of security deposit against the construction mutual aid association of the council of occupants' representatives by accepting the conjunctive plaintiff's claim against the construction mutual aid association of the council of occupants' representatives, the

[1] In principle, barring special circumstances, a claim for damages in lieu of defect repair under Article 9 of the former Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 6925, Jul. 18, 2003) should be reverted to the right holder such as a sectional owner, etc. in proportion to the ratio of shares in exclusive ownership. Thus, a right holder such as a sectional owner, etc. may file a lawsuit for damages against a seller by individually exercising the right for warranty of defect which belongs to

[2] The right to claim compensation for damages recognized as the right to claim compensation for defects under the Act on the Ownership and Management of Aggregate Buildings (hereinafter “Aggregate Buildings Act”) is vested in the sectional owner unless there are special circumstances. The right held by the council of occupants' representatives under the former Housing Construction Promotion Act (amended by Act No. 5451, Dec. 13, 1997) and the former Decree on the Management of Collective Housing (amended by Presidential Decree No. 16069, Dec. 31, 1998; hereinafter “Housing Ordinance”) is merely the right to claim compensation for defects against the project owner, and the right to claim compensation for damages in lieu thereof is not recognized. In addition, the right to claim compensation for defects against the construction mutual aid association based on the Housing Act and the Act and subordinate statutes has the nature of the guaranteed obligation of the project owner as the principal obligation of the project owner. In other words, the right to claim compensation for damages under the Aggregate Buildings Act and the right to claim compensation for defects and the obligation to claim compensation for damages against the project owner is not different from the obligation of the council.

[3] The case holding that in case where Gap's council of occupants' representatives and sectional owners of Eul's apartment complex jointly file a claim for damages against Eul corporation, which is a project undertaker, based on the old Housing Construction Promotion Act (amended by Presidential Decree No. 5908 of Feb. 8, 1999), old apartment management Decree (amended by Presidential Decree No. 16069 of Dec. 31, 199), or the Act on the Ownership and Management of Aggregate Buildings, and the council of occupants' representatives separately filed a claim for the payment of security deposit against the construction mutual aid association based on the contract for the warranty liability, and the court below dismissed the claim against the construction mutual aid association of the conjunctive sectional owners, and partly accepted the claim against the construction mutual aid association of the council of occupants' representatives, the court below did not err by admitting the claim against the construction mutual aid association of the council of occupants' representatives and the claim against Eul company of sectional owners for the payment of security deposit against the construction mutual aid association of the council of occupants' representatives. However, since each of the above liability overlaps exists within the same scope, it cannot be seen that the plaintiffs's claim for payment of defect liability.

[1] Article 9 of the former Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 6925 of Jul. 18, 2003); Article 67 of the Civil Procedure Act / [2] Article 9 of the Act on the Ownership and Management of Aggregate Buildings; Article 38(14) of the former Housing Construction Promotion Act (amended by Act No. 5908 of Feb. 8, 199); Articles 46(2) and 15 (see current Article 46(2) of the Housing Act); Article 16 of the former Decree on the Ownership and Management of Aggregate Buildings (amended by Presidential Decree No. 16069 of Dec. 31, 198); Article 17 (see current Article 59 of the Enforcement Decree of the Housing Act); Article 60 of the former Enforcement Decree of the Housing Act / [3] Article 9 of the former Act on the Ownership and Management of Aggregate Buildings; Article 38(14) (see current Article 46(1) of the Housing Act); Article 1606(2) of the former Enforcement Decree of the Housing Act

The council of occupants' representatives of regular gold treatment apartment

Plaintiff 1 and 542 others (Attorneys Choi Young-dong et al., Counsel for the plaintiff-appellant)

Suwon Construction Co., Ltd and one other (Law Firm Sejong, Attorney Lee Young-soo, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2006Na97988 decided February 3, 2009

All appeals and supplementary appeals are dismissed. The costs of appeal and supplementary appeal are assessed against each party.

The grounds of appeal and the grounds of incidental appeal are examined.

1. As to the ground of appeal purporting to be an indispensable co-litigation

Unless there are special circumstances, a right holder, such as a sectional owner, etc., can file a lawsuit against a seller for compensation for damages by individually exercising the right to delay of defects belonging to each sectional owner, in principle, barring special circumstances, since the right to claim compensation in lieu of defect repair under Article 9 of the former Act on the Ownership and Management of Aggregate Buildings (wholly amended by Act No. 6925, Jul. 18, 2003; hereinafter “former Aggregate Buildings Act”).

Therefore, we cannot accept the grounds of appeal that the claim for damages related to the defects that occurred in the apartment of this case constitutes an indispensable co-litigation that should be filed by all sectional owners who become the plaintiff.

2. Regarding the grounds of appeal that it is unlawful to dually recognize the claim for warranty bond against Defendant Construction Mutual Aid Association and the claim for damages against Defendant Treatment Construction Co., Ltd.

According to the reasoning of the judgment below and the records, the plaintiffs filed a claim for damages against the defendant Construction Co., Ltd. (hereinafter referred to as the "Defendant Co., Ltd.") of the council of occupants' representatives of the plaintiff regular gold-gu apartment apartment (hereinafter referred to as the "council of occupants' representatives") and the claim for damages against the defendant Co., Ltd. (hereinafter referred to as the "Defendant Co., Ltd.") by the plaintiff 1 and 542 (hereinafter referred to as the "Plaintiff Co., Ltd.") by combining them in the form of subjective and preliminary consolidation (the plaintiff's primary claim and the plaintiff's conjunctive claim by the council of occupants' representatives, the plaintiff's conjunctive claim, and the plaintiff's conjunctive claim by the plaintiff Co., Ltd., Ltd. (hereinafter referred to as the "Co., Ltd."), the plaintiff Co., Ltd., Ltd., and the defendant Co., Ltd., Ltd., to pay the warranty bond under the contract for warranty against the defendant Co., Ltd. (hereinafter referred to as the "Defendant Co., Ltd.).).).

The court below rejected the claim for damages against the defendant company by the plaintiff's representative council against the defendant company by the plaintiff's representative council, and partly accepted the claim for damages under the Aggregate Buildings Act, and also partly accepted the claim for payment of security deposit against the defendant association by the plaintiff's representative council.

The argument in the grounds of appeal is that the plaintiff's claim for damages against the defendant company of the plaintiff's representative council and the claim for deposit against the defendant company of the plaintiff's representative council is the primary claim, and that the plaintiff's claim for damages against the defendant company of the plaintiff's representative council is the primary claim. Thus, as long as the plaintiff's claim against the defendant company of the plaintiff's representative council was accepted among the primary claims, the plaintiff's claim against the defendant company of the plaintiff's representative council should not

However, barring any special circumstance, the right to claim for damages recognized as the right to demand a warranty of defects under the Aggregate Buildings Act belongs to a sectional owner, and the right held by the council of occupants' representatives under the Housing Act and subordinate statutes is only the right to claim the performance of the repair of defects against the business entity (in this case, the defendant company), and no right to claim damages in lieu thereof is recognized. Furthermore, the right to claim a warranty against the defendant association based on the Housing Act and subordinate statutes has the nature of the guaranteed obligation of the business entity for the repair of defects as the principal obligation of the business entity, and is irrelevant to the right to claim for damages by the sectional owners under the Aggregate Buildings Act. In other words, the right to claim for damages by the sectional owners under the Aggregate Buildings Act and the right to claim a reimbursement of defects and the right to claim a reimbursement of deposits by the council of occupants' representatives under the Housing Act and subordinate statutes are different from each other. In addition, the obligation to pay deposits to the plaintiff's council of occupants' representatives is merely the principal obligation for the repair of defects by the defendant company.

Therefore, the court below dismissed the plaintiff's claim against the defendant company by the plaintiff's council of occupants and the plaintiff's claim against the defendant company by the plaintiff's representative council, and accepted the plaintiff's claim by the preliminary plaintiff (the plaintiff's sectional owner). In addition, the plaintiff's claim against the defendant company by the plaintiff's representative council and the defendant's obligation to pay the security deposit against the defendant union are not related to the principal obligation and the principal obligation as alleged in the grounds of appeal. Thus, the court below accepted the plaintiff's claim against the defendant company by the plaintiff's representative council and the defendant's sectional owner by accepting one of the claims against the plaintiff's defendant company by the plaintiff's representative council, and it does not constitute any error. In addition, according to the reasoning of the judgment of the court below, the court below held that the plaintiff's claim against the defendant company by the plaintiff's sectional owner is not the principal and preliminary relation

Therefore, the court below's claim against the defendant union by the plaintiff's council of occupants' representatives and the plaintiff's claim against the defendant company by the plaintiff's sectional owner may not be erroneous. However, each of the above responsibilities recognized by the court below are partially overlapped, and as a result, to the extent that such overlap exists for the same repair of defects. Thus, if the plaintiffs exercise one of their rights and are paid in an amount equivalent to the repair cost in lieu of defect repair, other rights are extinguished within the scope related to the defect that was paid in lieu of defect repair, as alleged in the grounds of appeal. However, this cannot be viewed as a matter of adjustment at the stage of the performance of the obligation, but it does not constitute a mutual rejection relationship at the stage of the judgment declaring the existence of the obligation. Accordingly, the court below's acceptance of each of the above claims together cannot be viewed as an order for duplicate payment.

3. As to the grounds of incidental appeal to the purport that a voluntary lawsuit is in charge

Since the plaintiffs' claims against the defendant company against the defendant company are claims for damages, they cannot be viewed as filing a lawsuit with the council of occupants' representatives in charge of voluntary litigation. The grounds of incidental appeal disputing this cannot be accepted.

4. As to the grounds of appeal disputing the limitation of liability and the grounds of incidental appeal

In a case where the court recognizes the liability for damages and limits the amount of damages in light of the ideology of the damage compensation system, the fair apportionment of damages, taking into account all the circumstances, finding of facts as to the grounds for mitigation of liability or setting its ratio constitutes the exclusive authority of the fact-finding court unless it is deemed that it is considerably unreasonable in light of the principle of equity (see Supreme Court Decision 2007Da83908, Feb. 26, 2009). The same applies to a case where the liability for the repair of defects in this case, which has the character

In light of the records, the lower court cannot be deemed as significantly unfair or unreasonable in restricting the Defendants’ responsibilities on its grounds as stated in its reasoning. The grounds of appeal and the grounds of incidental appeal disputing this cannot be accepted.

5. Conclusion

Therefore, all appeals and incidental appeals are dismissed, and the costs of appeal and incidental appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Preliminary Plaintiffs: Preliminary

Justices Kim Chang-suk (Presiding Justice)