[1] The criteria for determining the validity of an assignment of claims and whether a lawsuit trust is held for the main purpose of litigation

[2] The legal nature of the seller's liability for warranty of an aggregate building under Article 9 of the Act on the Ownership and Management of Aggregate Buildings (=legal liability) and the extinctive prescription period of the damage claim (=10 years)

[3] Whether the council of occupants' representatives of apartment buildings has the right to pay warranty against defects (negative)

[4] Where an aggregate building is transferred, the relationship between the ownership of the right to warranty against defects

[5] The time when a delay liability for damages as a substitute for defect repair under Article 667 of the Civil Code occurs

Article 7 of the Trust Act; Article 9 of the former Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 7502 of May 26, 2005); Articles 162(1), 387(2), 449, and 667 of the Civil Act; Article 3(2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings

The council of occupants' representatives (Law Firm Lee & Lee, Attorneys Kim Yong-nam et al., Counsel for the plaintiff-appellant)

Korea National Housing Corporation (Law Firm Barun, Attorneys Kim Jong-jin et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2006Na2188 Decided December 30, 2008

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

The remaining appeals are dismissed.

The grounds of appeal are examined.

1. As to the assertion of the lawsuit trust

In a case where the assignment of a claim, etc. mainly takes place with the intention of having the assignment of claim, Article 7 of the Trust Act shall be deemed null and void, even if the assignment of claim does not fall under a trust under the Trust Act by analogy. Whether it is the principal purpose of litigation shall be determined in light of all the circumstances, such as the course and method of concluding the assignment of claim, interval between the transfer contract and the filing of the lawsuit, and the status relationship between the transferor and the transferee (see Supreme Court Decision 2000Da4210, Dec. 6, 2002).

The lower court determined that the transfer of the damage claim by the sectional owners cannot be deemed as the primary purpose, in full view of all the circumstances such as the transfer process, method, and time of the damage claim in lieu of the defect repair as indicated in the instant case, and the relationship between the sectional owners and the assignee, etc.

Examining the reasoning of the judgment below in light of the records, we affirm the above fact-finding and judgment of the court below as just, and there is no error of law by misunderstanding the legal principles of reasoning and litigation trust as otherwise alleged in the ground of appeal.

2. As to the warranty liability of the seller of the aggregate building and its extinctive prescription

Article 9 of the former Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 7502 of May 26, 2005; hereinafter referred to as the "Aggregate Buildings Act") provides that the provisions on the warranty liability of a contractor under the Civil Act shall apply mutatis mutandis to the warranty liability of a seller of an aggregate building in order to induce a seller of an aggregate building or a seller of an aggregate building to form a solid building and to further protect the owners of an defective constructed aggregate building, to clarify the contents of warranty liability of a seller of an aggregate building. The liability under the same Article is not based on a sales contract, but on the legal liability of a seller of an aggregate building to a sectional owner of an aggregate building as of the present owner of an aggregate building. Thus, the ten-year statute of limitations shall apply to a claim for damages arising therefrom pursuant to Article 162(1) of the Civil Act (see Supreme Court Decision 2008Da12439, Dec. 11, 2008).

The court below's decision is just in accordance with the above legal principles and there is no error in the misapprehension of legal principles as to the seller's liability for an aggregate building or the period of extinctive prescription, or any error in the misapprehension of legal principles as to the period of the seller's liability for an aggregate building or the period of the extinctive prescription, as it is obvious that even if the court below calculated from May 3, 1996, the period from May 3, 1996, which was the date of the pre-use inspection of the apartment building of this case, the plaintiff submitted to the court of first instance as the ground for the claim that the plaintiff acquired the claim for damages in lieu of defect repair from the sectional owners until October 6, 2005.

3. As to the interpretation of the final warranty completion certificate

Unless there are special circumstances, the right to a warranty under the Act on the Ownership and Management of Aggregate Buildings belongs to a sectional owner of an aggregate building, and the council of occupants' representatives can request the project operator to repair the defects, and it cannot be said that the council of occupants' representatives has the right to a warranty for defects (see Supreme Court Decision 2004Da20807, Aug. 24, 2006

According to the facts duly established by the court below's evidence, on January 31, 2001, 201, after the repair of defects in the apartment of this case was done, the plaintiff and Sam-hwan company affixed their respective seals on the final defect repair completion certificate, and the above confirmation letter states that "after the completion of this confirmation, the plaintiff shall not assert or raise additional defects, etc., and if Sam-hwan company requested the Construction Mutual Aid Association to cancel the warranty, it shall not raise any objection." However, in light of the above legal principles, in this case, in the absence of special circumstances, such as that the plaintiff was delegated to dispose of the right to claim damages from the sectional owners at the time of the completion of the above confirmation letter, it cannot be waived by the plaintiff as to the right to claim damages arising from the defects in the apartment of this case. Therefore, the judgment below rejected the defendant's assertion in the same purport, and there is no error of law of misunderstanding the legal principles of the good faith principle or the principle of no judgment.

4. As to the subject of ownership of the apartment transfer and the right to pay the defect repair

In principle, where a purchaser of an aggregate building transfers an aggregate building, the right to a warranty under Article 9 of the Aggregate Buildings Act shall be deemed to belong to the current sectional owner of the aggregate building. However, in special circumstances where the transferor, at the time of the transfer of an aggregate building, has reserved it in order to exercise the warranty warranty right (see Supreme Court Decision 2001Da47733, Feb. 11, 2003, etc.).

Based on the evidence of employment, the court below acknowledged that some sectional owners transferred the damage claim to the plaintiff at the time they partitioned the apartment in this case, and that they transferred the apartment in this case to the third party after the owner of the apartment in this case already transferred the damage claim in lieu of defect repair to the plaintiff, and held that if the apartment in this case transferred the apartment in this case to the third party after the owner of the apartment in this case transferred the damage claim in lieu of defect repair to the plaintiff, the right to warranty of defect at the time of the transfer to the third party shall be deemed excluded from the object of assignment, so the transferee shall not be deemed to have the right to warranty of defect. The above fact-finding and decision of

5. With respect to the scope of defects and the cost of outer wall painting including a rupture less than 0.3m

The court below recognized the fact that remuneration is necessary even if the amount of less than 0.3m is less than 0.3m from the employment evidence, and judged that the whole of the remuneration and outer wall as stated in its decision is necessary. According to the evidence duly admitted by the court below, the above fact-finding and decision of the court below are just and acceptable, and there is no error of misconception of facts, misunderstanding of legal principles, or lack of reasoning due to violation of the rules of evidence

6. On the initial date of the damages for delay

A contractor's liability for damages in lieu of defect repairs under Article 667 of the Civil Act, which is applied mutatis mutandis by Article 9 of the Multi-Family Building Act, is liable for delay from the time of receipt of the claim for performance (see Supreme Court Decision 2007Da83908, Feb. 26, 2009, etc.).

According to the reasoning of the judgment below, the court below added damages for delay from the day after the copy of the complaint of this case was served to the whole damages claim of this case that the plaintiff acquired from 794 sectional owners.

However, according to the records, the plaintiff asserted that he had been granted the assignment of claim from 739 sectional owners at the time of the submission of the complaint and filed a claim for the amount of the transfer of claim at the same time as it was admitted as evidence. On March 18, 2005, the plaintiff asserted that he was additionally granted the assignment of claim from 61 sectional owners at the time of submission of the preparatory document dated March 18, 2005, and filed a claim for the amount of the transfer of claim as evidence, stating that he had been granted the assignment of claim from 79 sectional owners. At the time of submission of the preparatory document dated October 6, 2005, at the time of submission, the plaintiff withdrawn the claim from 101 of the previous sectional owners among those who are not the sectional owners, additionally, received the assignment of claim from 794 sectional owners, and filed a claim for the amount of the transfer of claim with the purport of the transfer of claim as evidence, and as long as the defendant had already received the claim for damages from the sectional owners at the same time of the claim for damages.

Therefore, the court below erred by misapprehending the legal principles as to the initial date of the late payment of the obligation without the due date, which affected the conclusion of the judgment. The defendant's ground of appeal assigning this error is with merit.

7. As to the damages for delay on the cited portion in the first instance

Of the cited amounts in the appellate court, the defendant's objection to the existence and scope of the obligation should be deemed reasonable until the date when the appellate court rendered a judgment. However, with respect to the part which was accepted by the court of first instance and maintained as it was in the appellate court, as long as the appellate court judged that the plaintiff's request is well-grounded, the appellate court determined that the plaintiff's appeal as to this part is reasonable, since it is obvious that the defendant's appeal is groundless, it cannot be said that the defendant's objection against it is reasonable (see Supreme Court Decision 97Da42892, 42908 delivered on December 26, 1997). In addition, Article 3 (2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings (see Supreme Court Decision 97Da42892, 42908 delivered on December 26, 1997). Thus, since there is a considerable ground for the debtor's argument as to the existence or scope of the obligation to perform.

According to the reasoning of the judgment below, the court below, while maintaining the amount cited by the judgment of the court of first instance, ordered the defendant to pay damages for delay at the rate of 20% per annum from the day after the date of the judgment of first instance to the date of the judgment of the court of first instance.

In light of the above legal principles, the above judgment of the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to the scope of application of Article 3 (2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, as otherwise alleged in the

8. Conclusion

Therefore, the part of the judgment below against the defendant is reversed, and that part of the case is remanded to the Seoul High Court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Ill-sook (Presiding Justice)