[1] Where a law, which was enforced and applied at the time of the occurrence of a warranty bond, is amended or amended, or the applicable law becomes different, the law that sets the period and period of extinctive prescription of the claim

[2] The case holding that the statute of limitations for a warranty bond that occurred before February 28, 1999 due to the amendment of the former Housing Construction Promotion Act was applied to the claim for a warranty bond that occurred before the date of deletion of Article 47-12 (2) of the same Act, and the statute of limitations for a warranty bond that occurred after March 1, 1999 is not applicable to the claim for a warranty bond that occurred after March 1, 199, and the statute of limitations for a warranty bond that occurred after the date

[3] In a case where the council of occupants' representatives of multi-family housing exercises the right to claim for the repair of defects or the right to claim for the repair of defects pursuant to the duty to issue the housing project mutual aid association deposited in lieu of the security deposit for repairing defects, whether the exclusion period of 10 years is applied

[4] Where a housing business mutual aid association and a business entity set the guarantee period only without specifying the defects that the business entity intends to guarantee when entering into a guarantee agreement, the period of the defects subject to the guarantee shall be limited.

[5] In a case where a housing project mutual aid association and a project undertaker respectively concluded a first guarantee contract and second guarantee contract with a guarantee period of ten years whose guarantee period is three years, without any special agreement, such as excluding any duplication of guarantee period or guarantee object, the case holding that if a defect with a guarantee period of five or ten years arises within the guarantee period of the first guarantee contract, it also constitutes a guarantee object of the first guarantee contract

[1] Article 47-12 (2) of the former Housing Construction Promotion Act (amended by Act No. 5908, Feb. 8, 199); Article 1 of the Addenda of the former Housing Construction Promotion Act (amended by Act No. 6916, May 29, 199) / [2] Article 47-12 (2) of the former Housing Construction Promotion Act (amended by Act No. 5908, Feb. 8, 1999); Article 1 of the Addenda of the former Housing Construction Promotion Act (amended by Act No. 6916, May 29, 200); Article 9 of the former Enforcement Decree of the Housing Construction Promotion Act (amended by Act No. 1908, Feb. 6, 199) / [3] Article 9 of the former Enforcement Decree of the Housing Construction Promotion Act (amended by Presidential Decree No. 19657, Feb. 8, 199) / [6] Article 9 of the former Enforcement Decree of the Housing Act

[1] Supreme Court Decision 96Da2453 Decided June 28, 1996 / [3] Supreme Court Decision 2001Da47733 Decided February 11, 2003 (Gong2003Sang, 773) Supreme Court Decision 2001Da24891 Decided January 27, 2004 (Gong2004Da7616 Decided April 9, 2004) / [4/5] Supreme Court Decision 2008Da27356 Decided September 11, 2008 (Gong2008Ha, 1369) / [4] Supreme Court Decision 201Da63728 decided June 28, 2002

Plaintiff’s representative council (Attorney Kim Jong-sik, Counsel for plaintiff-appellant)

Korea Housing Guarantee Co., Ltd. (Law Firm Daegu, Attorneys Southern-jin et al., Counsel for the defendant-appellant)

Daegu High Court Decision 2006Na9546 decided September 11, 2008

The part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the Daegu High Court.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. As to the completion of the extinctive prescription

(1) Fact-finding and judgment of the court below

According to the reasoning of the judgment below, the court below, based on the evidence, found that the Association of Housing Co., Ltd. was a project proprietor who newly constructed and sold the plaintiff's 22 stories on the ground 615-5 on the 19th 2nd 2nd Do, and the Association of Housing Co., Ltd. was not a guarantee contract for the housing business association on November 1, 1996 (amended by Act No. 5908, Feb. 8, 199; hereinafter the same shall apply) under the former Housing Construction Promotion Act, Article 38 (15) of the same Decree (amended by Presidential Decree No. 16069, Dec. 31, 1998; hereinafter the same shall apply) to the plaintiff's warranty obligation under the guarantee contract of the Association of Housing Co., Ltd. which was issued to the 9th 19th 2nd 19, which was the guarantee obligation of the Association of Housing Business for the remaining 196th Gun.

Furthermore, pursuant to Article 47-12 (2) of the former Housing Construction Promotion Act, which had been in force at the time of entering into a guarantee agreement of this case, the guarantee creditor's right to guarantee deposit against the union shall be terminated by prescription if it is not exercised for five years from the expiration date of the guarantee period. However, under the guarantee agreement of this case, the guarantee period of the defendant for each defect of one year, two years, or three years from the expiration date of the guarantee period has expired on November 1, 1999, and the plaintiff's lawsuit of this case was filed on January 6, 2005, which is apparent from the expiry date of the guarantee period, and the fact that the plaintiff's lawsuit of this case was filed on January 6, 2005, which is apparent from the expiration date of the guarantee period, the court below determined that the plaintiff's claim for the warranty bond of each defect repair cost of this case of this case of this case of one year,

(2) Judgment of the Supreme Court

However, we cannot accept the above judgment of the court below for the following reasons.

The period of extinctive prescription and initial date of the security deposit for repairing defects shall be determined by the law that had been enforced and applied at the time of the occurrence of the claim, and it shall not be determined by the amended Act, the new Act, or the newly applicable Act on the ground that the new Act has been amended or amended or the new Act has changed (Supreme Court Decision 96Da2453 delivered on June 28, 1996).

Article 47-12(2) of the former Housing Construction Promotion Act, which was enforced and applied at the time of the conclusion of the instant guarantee contract, provides that “The right of the guaranteed creditor to the security deposit under the said contract is extinguished by prescription if it is not exercised within five years from the expiration date of the guarantee period.” However, as the former Housing Construction Promotion Act was amended by Act No. 5908 on February 8, 1999, the said provision was deleted, and the amended Housing Construction Promotion Act was enforced from March 1 of the same year (Article 1 of the Addenda).

In light of the above legal principles, first of all, the period of extinctive prescription of the Plaintiff’s claim for the warranty bond that occurred until February 28, 1999, which was enforced and applied by Article 47-12(2) of the former Housing Construction Promotion Act, shall be five years in accordance with the above provision, and the initial date of the extinctive prescription shall be the expiration date of the warranty period, in preference to the Civil Act.

On the other hand, Article 47-12 (2) of the former Housing Construction Promotion Act cannot be applied to the plaintiff's claim for warranty bond incurred after March 1, 1999 when the amended Housing Construction Promotion Act enters into force, and the period of extinctive prescription and initial date thereof shall be determined in accordance with the provisions of the Civil Act, etc. The guarantee contract of this case can be concluded between the Housing Business Mutual Aid Association and the Association Housing Mutual Aid Association, and the plaintiff's claim for warranty bond acquired under the guarantee contract of this case which constitutes commercial activity against the Federation Housing Co., Ltd. is a commercial claim. Thus, the extinctive prescription period is five years pursuant to Article 64 of the Commercial Act, and the initial date of the extinctive prescription shall be the date

Therefore, the lower court determined the period of extinctive prescription and the initial date for application respectively by dividing the Plaintiff’s claim for warranty bond against defects that occurred in the instant apartment into the part that occurred at the time of enforcement and application of Article 47-12(2) of the former Housing Construction Promotion Act, and the part that occurred thereafter, and further determined whether the claim for warranty bond has expired by prescription.

Nevertheless, the court below determined that the plaintiff's claim for warranty against the whole of the defect warranty bond by applying Article 47-12 (2) of the former Housing Construction Promotion Act to the whole of the plaintiff's claim for warranty against defects of one year, two years or three years shall be deemed five years from the expiration date of the warranty period, and that the claim for warranty bond has expired by prescription shall be deemed to have been erroneous in the misapprehension of legal principles as to the expiration of extinctive prescription or as to the application of new and new laws, and the failure to exhaust all necessary deliberations, which affected the conclusion

B. As to the application of the Act on the Ownership and Management of Aggregate Buildings

Article 9 of the Act on the Ownership and Management of Aggregate Buildings (hereinafter "the Aggregate Buildings Act") reverts to the owner of an aggregate building unless there are special circumstances (see Supreme Court Decision 2001Da47733, Feb. 11, 2003). Meanwhile, according to the former Housing Construction Promotion Act and the former Decree on the Management of Aggregate Buildings, the council of occupants' representatives grants the owner of an apartment building a right to claim the repair of defects according to the contents of construction works and the type of defects to the project owner of an apartment building. However, the purpose of the right is to set the criteria for prompt repair of defects as a warranty bond by determining the procedure, method and period of defect repair of an apartment house at an administrative level (see Supreme Court Decision 2003Da7616, Apr. 9, 2004). Thus, Article 9 of the Aggregate Buildings Act is not applicable to the exercise of the right to claim the repair of defects or the right to claim the repair of defects in accordance with the warranty bond issued by the Housing

Therefore, we cannot accept the appeal to the effect that the ten-year exclusion period should be applied under Article 9 of the Aggregate Buildings Act to the defect repair claim against the defects that occurred in the apartment of this case.

C. As to the violation of the principle of pleading

The argument about how the period of extinctive prescription is limited is merely a mere legal argument, and the court can decide ex officio without the principle of pleading (see Supreme Court Decision 2006Da70929, Mar. 27, 2008, etc.).

We cannot accept an appeal to the effect that the lower court’s application of the five-year extinctive prescription under Article 47-12(2) of the former Housing Construction Promotion Act violates the principle of pleading, where the Defendant asserted the completion of five-year extinctive prescription under the Commercial Act.

2. Regarding ground of appeal No. 2

(a) Article 38(14) of the former Housing Construction Promotion Act provides that "the project proprietor and the project owner under paragraph (14) shall be liable to repair defects of multi-family housing under the conditions as prescribed by the Presidential Decree." Article 38(16) of the same Act provides that "the project proprietor and the project owner under paragraph (14) shall, when serious defects have occurred in the portions of proof-stress structure of multi-family housing, repair them within the extent of ten years and compensate for the damages incurred therefrom. In this case, the period of defect repairs and the scope of defects by structure shall be prescribed by the Presidential Decree." Article 16(1) of the former Decree on the Management of Multi-family Housing shall provide that "the period of defect repairs for multi-family housing, etc. shall be two years or more from the date of inspection, and the period of classification and scope of other facilities shall be prescribed by the Ordinance of the Ministry of Construction and Transportation, and Article 16-2(1) of the same Decree provides that "the period of defect repair of multi-family housing before the inspection of multi-family housing shall be submitted."

In full view of the above provisions, since the guarantee period determined by the Housing Business Mutual Aid Association and the business entity at the time of concluding the guarantee contract is not limited by the period of defect repair liability under Article 16 of the former Decree on the Management of Multi-Family Housing, in cases where the guarantee period is not determined by the contents of the defect that the housing business Mutual Aid Association and the business entity intend to guarantee under the guarantee contract, and only the guarantee period is determined by the guarantee period, the defect guaranteed under the guarantee contract refers to all the defects within the guarantee period of the defect repair liability period incurred within the guarantee period, and the pertinent guarantee contract does not guarantee only the defect during the remainder of the guarantee period other than the short-term other guarantee contract that belongs to the guarantee period of the guarantee period (see Supreme Court Decisions 201Da63728, Jun. 28, 2002; 2002Da7333, Jan. 26, 200

B. Based on its adopted evidence, the court below acknowledged the following facts: the defect as shown in the attached Table 4 of the judgment below, the defect liability period of which is 5 years, the defect liability period of which is 10 years as shown in the attached Table 5 of the judgment below; the defect liability period of which is 5 years; the cost of KRW 59,185,655, and KRW 153,742,113 for the purpose of repairing the defect of which the defect of which is 10 years is 5 years; and the defendant's security deposit of which under the second guarantee contract is 66,060,000, among the expenses for repairing the defect of which is 5 years or 10 years, the court below held that the defendant is liable to pay the plaintiff a delay compensation amount of KRW 66,06,00 equivalent to the security deposit of the second guarantee contract; and

Such determination by the court below is based on the premise that the defect in five or ten years of the defect repair liability period among the defect in the apartment of this case falls under the object of the guarantee of the second guarantee contract and does not fall under the object of the guarantee of the first guarantee contract.

However, it is difficult to accept the judgment of the court below on the premise of the above point for the following reasons.

In light of the above legal principles and the records, there is no evidence to acknowledge that the period of guarantee between the Co., Ltd. and the Defendant (Housing Business Mutual Aid Association) respectively concluded the first guarantee agreement of three years and the second guarantee agreement of ten years, and there is no special agreement between each guarantee agreement to exclude the overlapping of guarantee period and the guarantee subject matter. Thus, if the defect liability period of five or ten years arose between November 2, 1996 and November 1, 1999 (three years) as the guarantee period of the first guarantee agreement, barring any special circumstance, if the defect liability period of five or ten years occurred between November 2, 1996 and November 1, 199.

Therefore, the court below should have deliberated on whether there was a defect that occurred within three years, the guarantee period of the first guarantee contract, among the defect that occurred in the apartment of this case, five or ten years, and the cost of repairing the defect. If such defect and the cost of repairing the defect are recognized, the court below ordered the defendant to pay the warranty bond corresponding to the cost of repairing the apartment of this case under the first guarantee contract.

Nevertheless, the court below did not review and determine the above facts on the premise that the defect repair liability period of five or ten years is not an object of the guarantee of the first guarantee contract, and it erred in the misapprehension of legal principles as to the object of guarantee of the second guarantee contract and failing to exhaust all necessary deliberations, thereby affecting the conclusion of the judgment. The grounds of appeal pointing this out are with merit.

3. Conclusion

Therefore, the part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)