[1] Whether the council of occupants' representatives has a right to claim damages in lieu of defect repair in a case where a defect occurs in a multi-family housing (negative)

[2] The case holding that in a case where the council of occupants' representatives filed a claim for damages in lieu of the defect repair directly, but the cause of the claim was changed by taking over the claim from the sectional owners, the interruption of the extinctive prescription becomes effective when a preparatory document to change the cause of the claim was submitted, not when the lawsuit was filed,

[1] Article 9 of the Act on the Ownership and Management of Aggregate Buildings, Article 46 of the Housing Act, Article 59 (2) of the Enforcement Decree of the Housing Act / [2] Article 168 of the Civil Act

[1] Supreme Court Decision 2004Da20807 Decided August 24, 2006

Plaintiff’s representative meeting (Attorney Park Hong-hoon et al., Counsel for the plaintiff-appellant)

Korea National Housing Corporation (Law Firm Hanl, Attorneys Kim Young-chul, Counsel for defendant-appellant)

Seoul High Court Decision 2005Na80990 decided September 25, 2008

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

We examine the grounds of appeal.

1. In a case where the assignment of claims primarily takes place with the intention of having a person conduct procedural acts, even though the assignment of claims does not fall under a trust under the Trust Act, Article 7 of the Trust Act is applied by analogy, and thus is null and void. However, in full view of various circumstances such as the circumstance, method, time, and time of the transfer of the right to claim damages in lieu of defect repair as indicated in the record, the relationship between the sectional owner and the transferee, who is the transferee, and the plaintiff who is the transferee, it is difficult to deem that the transfer of the right to claim damages that the

In the same purport, the judgment below that rejected the defendant's defense of the lawsuit trust is justifiable.

This part of the judgment of the court below is not erroneous in the misapprehension of legal principles as to the prohibition of litigation trust.

2. The right to demand a warranty of defects under Article 9 of the Act on the Ownership and Management of Aggregate Buildings belongs to a sectional owner of an aggregate building, barring special circumstances. Although Article 46 of the Housing Act and Article 59(2) of the Enforcement Decree of the Housing Act grant the council of occupants' representatives under the former Enforcement Decree of the Housing Construction Promotion Act (amended by Act No. 6916 of May 29, 2003) the right to demand a warranty to the project owner of an apartment building, the purport is to set the criteria for prompt repair of defects as a warranty bond by determining the procedure, method, and period of defect repair in an administrative point, and it cannot be deemed that the council of occupants' representatives grants a warranty warranty right to the project owner in addition to the right to demand a warranty of defects. Thus, the council of occupants' representatives may request a warranty against the project owner, and it does not have a right to claim a substitute damages (see, e.g., Supreme Court Decision 2004Da20807, Aug. 24, 2006).

According to the reasoning of the judgment below, in this case where the plaintiff transferred a claim for damages in lieu of the defect repair from some of the sectional owners of the apartment of this case and sought payment of damages against the defendant against the defendant, the court below rejected the defendant's defense that the defendant's claim for damages in lieu of the above defect repair has expired 10 years of extinctive prescription pursuant to Article 162 (1) of the Civil Act instead of 5 years of extinctive prescription as to the claim for damages in lieu of the above defect repair. In light of a lot of controversy as to whether the plaintiff's council of occupants' representatives can exercise the right to damages in lieu of the above defect repair, the plaintiff's claim for damages can be the subject of the right to damages in lieu of the above defect repair. In the case of this case where the plaintiff's claim for damages is transferred from the sectional owners for prompt resolution of the case, it is consistent with the principle of good faith that the period of extinctive prescription of the plaintiff's claim for damages should be viewed as the time when the plaintiff's claim for damages was transferred.

However, according to the facts and records of the court below, under the premise that the plaintiff originally filed the lawsuit of this case on July 6, 2004 under the premise that he had a claim for damages in lieu of each defect repair of this case, the plaintiff added the claim for damages arising from the transfer of the above claim to a preliminary claim on July 26, 2005 after being transferred the above claim for damages from some sectional owners on July 11, 2005, and on July 26, 2005. According to the above legal principles, unless the plaintiff had no right to file a lawsuit originally filed, the interruption of prescription cannot take effect, and the interruption of prescription cannot take effect only on the date the plaintiff received the transfer of claim and submitted a preparatory document of the preliminary claim as a legitimate right holder, barring any special circumstance. Thus, there is no special circumstance that the grounds cited by the court below alone should be viewed differently as the interruption date (see, e.g., Supreme Court Decisions 2008Da12439, Dec. 11, 2008).

Therefore, the judgment of the court below that the extinctive prescription of the claim in this case was interrupted due to the plaintiff's filing of the lawsuit in this case is erroneous in the misapprehension of legal principles as to the interruption of extinctive prescription.

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

Justices Cha Han-sung (Presiding Justice)