Security deposit, etc. for repairing defects 2013Da15531

Start-up Council of Residents' Representatives

Korea Housing Guarantee Corporation

Seoul High Court Decision 2012445421 Decided January 24, 2013

November 13, 2014

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

The grounds of appeal are examined.

1. (a) Article 46 of the former Housing Act (amended by Act No. 9405, Feb. 3, 2009; hereinafter the same shall apply) provides for the date of inspection on use of collective housing (referring to the date of approval for temporary use where approval is obtained for the whole collective housing within the housing complex) or the date of inspection on use of collective housing under Article 18 of the Building Act (including the owner who constructed the collective housing for the purpose of parcelling-out after obtaining a building permit under Article 8 of the Building Act and the constructor who performs acts under Article 42 (2) 2; hereinafter the same shall apply in this Article) under paragraph (1) of the same Article that "the project owner (including the owner who has constructed the collective housing for the purpose of parcelling-out after obtaining a building permit under Article 8 of the Building Act; hereinafter the same shall apply) shall be liable to compensate for any defect within the period prescribed by Presidential Decree, such as damage or deterioration caused by a defect in the structures and facilities of the collective housing within the period prescribed by Presidential Decree."

Meanwhile, Article 59 of the former Enforcement Decree of the Housing Act (amended by Presidential Decree No. 19935, Mar. 16, 2007; hereinafter the same) provides that "the scope of defects that a project proprietor is liable for repair under Article 46 (1) of the Act, the warranty period for each load-bearing structure and each facility construction shall be as shown in Tables 6 and 7." Article 62 (3) provides that "where the head of a Si/Gun/Gu recognizes that there is a serious defect in the load-bearing structure of an apartment pursuant to Article 46 (4) of the former Housing Act, he/she may request the relevant agency for safety inspection of the apartment house, and Article 106 (1) 2 provides that "the warranty for the repair of defects that have occurred during the warranty period of defect liability pursuant to Article 59 (1)" may be the warranty liability of the defendant.

In addition, attached Table 6 of the former Enforcement Decree of the Housing Act provides that "the scope of defects" under the title of "the scope of defects subject to defect repair and the period of warranty liability for each facility construction" shall be "the defect that may cause harm to the function, aesthetic view or safety of a building or a facility due to the error in construction" and "the warranty liability period for each facility construction" shall be divided into one year, two years, and three years for each construction.

On the other hand, attached Table 7 of the former Enforcement Decree of the Housing Act provides that "the scope of defects subject to defect repair by load-proof structure and the period of warranty liability" under the title "B" is "the scope of defect" due to the defect in the load-proof structure of Article 62 (3) or "the apartment house in question is judged to be in danger of collapse" as a result of the safety diagnosis under the provision of Article 62 (3), and "B" columns, bearing walls (excluding lighting walls, etc. which do not have power) are 10 years, and the beams, floors, and roof are 5 years."

B. In addition to the above contents and structure of the housing law, ① Article 46(1) and (3) of the former Housing Act, and Article 59(1) and attached Table 7 of the former Enforcement Decree of the Housing Act intend to impose an aggravated liability for serious defects arising from the internal proof-stress structure in light of its risk and key nature, and the case where multi-family housing is likely to collapse or collapse with respect to the internal proof-stress structure.

It appears that it is not intended to limit liability for repairing only to the person. ② In the case of defects that are not serious defects in the portions of proof-stress structure, it constitutes defects that a business entity bears the responsibility for repairing defects pursuant to Article 46(1) of the former Housing Act, Article 59(1) and attached Table 6 of the former Enforcement Decree of the Housing Act. However, there is no express provision regarding the period for repairing defects. ③ Meanwhile, the defect liability period of one year, two years, and three years as provided for in attached Table 6 of the former Enforcement Decree of the Housing Act is classified by type of construction, and the defect of proof-proof structure is classified by category of construction, and it is difficult to immediately apply the defect liability period for each facility construction of multi-family housing, which is not a significant defect that occurs in the area of proof-proof structure. ④ The Framework Act on Construction Industry and the Enforcement Decree thereof, which are the whole of multi-family housing, shall be more than 10 years for the period of liability of columns and bearing walls of large public buildings including multi-family housing, and shall be more than 2 years for the purpose or 4 years for its provision.

2. Nevertheless, the lower court is likely to collapse or collapse the relevant apartment house as a result of safety diagnosis, in order to constitute a defect in the business entity’s defect liability period of five or ten years under the former Housing Act and the former Enforcement Decree of the Housing Act.

Therefore, in order to establish the guarantee liability for the 5-year or 10-year defect as prescribed by the attached Table 7 of the Enforcement Decree of the former Housing Act, the Defendant dismissed the Plaintiff’s claim of this case on the ground that it is insufficient to recognize that, in the case of the 5-year or 10-year defect that occurred in the section for exclusive use and section for common use in the calculation apartment, the apartment will collapse or collapse due to the defect in the portions for exclusive use and section for common use in the calculation apartment, it is difficult to recognize that the initial apartment will collapse or collapse due to the defect. In so determining, the lower court erred by misapprehending the legal doctrine on the period of warranty for the portions for the repair of the portions for the proof structure of the apartment under the Enforcement Decree of the Housing Act and the former Enforcement Decree of

3. 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 Kim So-young

Justices Kim Yong-deok

Justices Ko Young-han