[1] Whether the council of occupants' representatives has a right to claim damages in lieu of a defect repair claim under Article 46 of the Housing Act and Article 59 (2) of the Enforcement Decree of the same Act where a defect occurred in a multi-family housing (negative)

[2] In a case where the council of occupants' representatives of multi-family housing added a claim for damages caused by the assignment of claims by transfer of claims by a partial sectional owners with the knowledge that it had no right to claim damages, while it filed a lawsuit for damages in lieu of the defect repair, the case holding that the interruption of prescription takes effect only on the date on which a legitimate right holder receives the assignment of claims and submits a preparatory document on the grounds of preliminary claim as a legitimate right holder, barring special circumstances

[3] The case holding that there are no special circumstances to regard the interruption date of extinctive prescription of the right to claim damages as the time of filing a lawsuit on the ground that, where a sectional owner of a collective housing filed a lawsuit against the business entity directly in lieu of defect repair and later transferred the right to claim damages to the council of occupants' representatives after filing a lawsuit through the council of occupants' representatives in lieu of defect repair and later transferred the right to claim damages at the time of transfer

[1] Article 46 of the Housing Act, Article 59(2) of the Enforcement Decree of the Housing Act, Article 9 of the Act on the Ownership and Management of Aggregate Buildings / [2] Article 46 of the Housing Act, Article 59(2) of the Enforcement Decree of the Housing Act, Article 9 of the Act on the Ownership and Management of Aggregate Buildings, Articles 162, 168, and 170 of the Civil Act / [3] Article 46 of the Housing Act, Article 59(2) of the Enforcement Decree of the Housing Act, Article 9 of the Act on the Ownership and Management of Aggregate Buildings, Articles 162, 168, and 170 of the Civil Act

[1] Supreme Court Decision 2001Da24891 decided Jan. 27, 2004 (Gong2004Sang, 430) Supreme Court Decision 2004Da20807 decided Aug. 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 Choi Il-l et al., Counsel for the defendant-appellant)

Dusan Construction Co.

Seoul High Court Decision 2007Na105725 decided May 27, 2008

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

We examine the grounds of appeal.

1. The judgment of the court below

According to the reasoning of the judgment below, the court below rejected the defendant's defense of extinctive prescription on the ground that as long as the plaintiff filed the lawsuit of this case on August 22, 1995, prior to the expiration of ten years from August 22, 1995, the inspection date of the use inspection of the apartment of this case, and the plaintiff filed the lawsuit of this case on December 222, 1995, as long as the extinctive prescription of the above damages claim was expired in lieu of the above defect repair in lieu of the above defect repair, the ten-year extinctive prescription was applied pursuant to Article 162 (1) of the Civil Act, not to the five-year commercial prescription, but to the damages claim in lieu of the defect repair in lieu of the above defect repair. Meanwhile, each of the defects in this case stated in the judgment of the court below were occurred within 3 years from August 22, 1995.

2. Judgment on the grounds of appeal

A. As to the extinctive prescription period

Article 9 of the Act on the Ownership and Management of Aggregate Buildings provides that the provisions on the warranty liability of a contractor under the Civil Act concerning the warranty liability of a seller of an aggregate building shall apply mutatis mutandis to the warranty liability of a seller of an aggregate building in order to induce a seller or a seller of an aggregate building to form a solid building and to protect the buyer of an defective building, and clarify the contents of warranty liability of a seller of an aggregate building. The liability under Article 9 of the above Act is not based on a sale contract but on the legal liability of a seller of an aggregate building to a seller of an aggregate building as at the present sectional owner of an aggregate building (see Supreme Court Decision 2001Da47733, Feb. 11, 2003). Therefore, the ten-year extinctive prescription period shall apply to a claim for damages arising therefrom pursuant to Article 162 (1) of the Civil Act. Therefore, it is justifiable that the court below's ten-year prescription period is applied to a claim for damages in lieu of defect repair in the same purport, and there is no violation

B. As to the interruption date of extinctive prescription against the claim of this case

However, among the judgment of the court below, the part that held that the statute of limitations for the above damages liability was interrupted on December 22, 2004, which the plaintiff filed the lawsuit of this case, is not acceptable for the following reasons.

Unless there are special circumstances, the right to estimate defects under Article 9 of the Act on the Ownership and Management of Aggregate Buildings belongs to a sectional owner of an aggregate building, and even though Article 46 of the Housing Act and Article 59 (2) of the Enforcement Decree of the Housing Construction Promotion Act (wholly amended by Act No. 6916 of May 29, 2003), the council of occupants' representatives grants the right to claim the repair of defects to the business owner of an apartment building under the Housing Construction Promotion Act (wholly amended by Act No. 6916 of May 29, 2003). 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, period, etc. of the repair of defects in an apartment house at an administrative level, and it cannot be deemed that the council of occupants' representatives grants the right to demand the repair of defects to the business owner in addition to the right to demand the repair of defects. Thus, the council of occupants' representatives can only request the repair of defects, and it cannot be deemed to have a

According to the facts established by the court below, the plaintiff filed a lawsuit of this case on December 22, 2004 under the premise that he had a right to claim damages in lieu of each defect repair of this case, and came to know that the plaintiff did not have a right to claim damages and only each sectional owner has a right to claim damages while conducting the lawsuit of this case, and submitted a preparatory document to the effect that he added a claim for damages due to the transfer of the above assignment of claims to a preliminary cause for the first time on January 31, 2007 after a partial sectional owner transferred the right to claim damages from some sectional owners. Thus, if the case is the same, the plaintiff's lawsuit as originally filed against the plaintiff is a lawsuit against the non-right holder, and the interruption of prescription becomes effective only on the date on which he submitted the preparatory cause as a legitimate right holder with the assignment of claims, barring special circumstances.

The court below held that since January 26, 1996, the head of the management office of the apartment of this case continuously requested the defendant to repair the defects that occurred in the apartment of this case from around January 26, 1996, the defendant continuously requested the repair work of the defects that occurred in the apartment of this case, even though the defendant performed partial repair work, each of the above defects still remains, the plaintiff's council of occupants' representatives seems to be entitled to repair the defects that occurred in the apartment of this case in lieu of the defect repair compensation that the plaintiff and the plaintiff's council of occupants' representatives could exercise the right to claim damages in lieu of the defect repair, and in the case of this case where the sectional owners filed a lawsuit against the defendant without directly filing a lawsuit against the defendant and later transferred the claim against the defendant against the plaintiff by the plaintiff, the act of deeming the period of extinctive prescription of the sectional owners as the time of assignment of claims, which is not the time of the plaintiff's lawsuit, may harm the interests of the sectional owners, it cannot be viewed that there are special

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

3. Conclusion

Therefore, without examining the remaining grounds for appeal, the conclusion of the court below without examining it is difficult to maintain it. Thus, 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 Park Ill-sook (Presiding Justice)