(영문) 서울고등법원 2008. 1. 8. 선고 2007나65162 판결

The defendant shall pay to the plaintiff the amount of KRW 224,64,273 with 5% per annum from August 4, 2005 to January 8, 2008, and 20% per annum from the next day to the day of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. Of the total litigation costs, 70% is borne by the Plaintiff, and the remainder 30% is borne by the Defendant, respectively.

4. The amount as referred to in paragraph (1) may be provisionally executed.

Purport of claim and appeal

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff an amount of KRW 798,751,676 and an amount of KRW 5% per annum from the following day of service of a copy of the complaint to the date of service of a written application for modification of the claim and the cause of the claim as of April 20, 207, and 20% per annum from the next day to the date of full payment.

Reasons

1. Basic facts

This Court's reasoning is the same as that of the corresponding part of the reasoning of the judgment of the court of first instance. Thus, this Court's reasoning is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. The plaintiff's assertion and the contents of relevant statutes

A. The plaintiff's assertion

In the new construction of the apartment in this case, there were defects in common areas that the Defendant altered or constructed differently from the design drawings in the sale of the apartment in lots, or caused the defect to the section for common use. The repair costs per defect warranty period shall be 703,39,267 won (10 years), 181,016,356 won (5 years), 47,445,715 won (5 years), 14,821,147 won (3 years), 3,498,465 won (2 years), 27,921,268 (1 year) and 218. The Defendant is obliged to pay 97,102,218 won to the Plaintiff for the defect warranty liability of the sectional owner under the Housing Act (296,974,982,974,982,967,92,984,296,294,296,296,294,2967,25,2964,2,296,2,

B. Details of the relevant statutes

1) The Housing Act (amended by Act No. 7520, May 26, 2005)

Article 46 (Liability for Warranty, Repair of Defects, etc.)

(1) Notwithstanding the provisions of Article 9 of the Act on the Ownership and Management of Aggregate Buildings, when any defect prescribed by Presidential Decree, such as rupture, subsidence, damage, etc. due to a mistake in construction, has occurred within the warranty liability period prescribed by Presidential Decree, from the date of approval for the use of collective housing (referring to the date of approval for temporary use, where approval for temporary use has been obtained for the whole collective housing within a housing complex) or from the date of approval for the use of collective housing under Article 18 of the Building Act, to the date of inspection for the use of collective housing (referring to the date of approval for temporary use, where approval for temporary use has been obtained for the whole collective housing within a housing complex) or from the date of approval for the use of collective housing under Article 18 of the Building Act to the extent of 10 years for each load, subsidence, damage, etc. due to a mistake in construction within the warranty liability period prescribed by Presidential Decree, the defect shall be repaired at the request of

(2) A project undertaker under the provisions of paragraph (1) (where there is a separate person who has performed construction works after being awarded a contract for construction works by a project undertaker as a lump sum, referring to such person) shall deposit a warranty bond under the conditions as prescribed by the Presidential Decree: Provided, That the same shall not apply to a project undertaker who is the State, a local government, the Korea National Housing Corporation, or a local

(3) When any serious defects have occurred in the portions of proof-proof structures of collective housing within the period of warranty liability under paragraph (1), the project undertaker shall be liable to compensate for the damages incurred due to the occurrence of defects.

B) Addenda (Law No. 7520, May 26, 2005)

(1) This Act shall enter into force on the date of its promulgation.

(Transition Measures concerning Warranty Liability and Repair of Defects) The provisions of Article 46 shall apply to the usage inspection under Article 29 of the Housing Act or the approval for use under Article 18 of the Building Act prior to the enforcement of this Act and the liability for warranty of defects of the collective housing that have obtained approval for use under Article 18 of the same Act

2) Enforcement Decree of the Housing Act (amended by Presidential Decree No. 19053, Sept. 16, 2005)

Article 59 (Defect Repairs by Project Undertaker)

(1) The scope of defects for which a project undertaker (referring to a project undertaker under the main sentence of Article 46 (2); hereafter the same shall apply in this Article and Articles 60 and 61) is responsible for repair under Article 46 (1) of the Act, the defect liability period for each load-proof structure and each installation work, etc. shall be as listed in the Tables 6 and 7.

(2) "Persons prescribed by Presidential Decree, such as occupants, etc. of multi-family housing" in Article 46 (1) of the Act means occupants, the council of occupants' representatives, the management body, or the management body organized under the Act on Ownership and Management of Condominium Buildings (hereafter referred to as the "council of occupants' representatives, etc.

(3) Where any defects have occurred in the collective housing within the defect security period under paragraph (1), the council of occupants' representatives, etc. may request the project undertaker to repair such defects. In such cases, the project undertaker shall repair such defects or notify the council of occupants' representatives, etc. of a plan for repairing defects specifying the repair schedule, within 3 days from the date of receiving the request for defect repair (referring to the date of receiving the notification of the results of the determination in cases of making the determination of defects under paragraph (4);

(6) Where the business entity fails to notify the repair of defects or the defect repair plan within 3 days from the date of receiving a request for repairing the defects under the latter part of paragraph (3), or fails to implement the defect repair in accordance with the notified defect repair plan, the council, etc. of occupants' representatives may directly repair them by using the defect repair money (hereinafter referred to as the "liability repair money") under the main sentence of Article 46 (2) of the Act or have any third party repair them. In such cases, the council,

B) [Attachment 6] Scope of Defects subject to Repair and Liability Period by Facility Construction (Relation to Article 59(1))

1. The scope of defects: A defect that may cause harm to the functions, aesthetic pipes or safety of a building or an establishment due to rupture, rupture, turfing, subsidence, damage, collapse, water leakage, leakage, operating or functional failure, defect in the attached land or the rupture, death or failure in payment due to a mistake in construction;

2. Liability period for defect liability by facility work: The liability period for defect liability for each 1 to 3 years for each 17 item of facility work (hereinafter referred to as "liability period for defect liability");

C) Scope of defects subject to defect repair by load-bearing structure and defect liability period (related to Article 59(1))

1. Scope of defects;

(a) Where the relevant apartment house is collapsed due to any defect in the portions of proof-proof structures;

(b) Where it is judged that the apartment house is likely to collapse as a result of safety diagnosis under Article 62 (3).

2. Defect repair period by load-proof structure;

(a) Plastics or bearing walls (excluding plastic walls that do not bear force): Ten years;

(b) Boll, floor, and roof: 5 years;

(iii) Act on the Ownership and Management of Aggregate Buildings

Article 9 (Liability for Warranty)

(1) With respect to the warranty liability of a person who constructs and parcels out a building under Article 1 or 1-2, the provisions of Articles 667 through 671 of the Civil Act shall apply mutatis mutandis (the amended on July 18, 2003).

(2) With respect to warranty liability of a seller under paragraph (1), no special agreement unfavorable to a buyer shall be valid than that provided for in the Civil Act.

B) Supplementary Rule

Article 6 (Relation to the Housing Act) Special provisions of the Housing Act concerning the management and standards of aggregate housing shall be effective as long as they conflict with this Act and do not impair the basic rights of sectional owners: Provided, That the liability for warranty of collective housing and repair of defects shall be governed by the provisions of Article 46 of the Housing Act (amended on May 26, 2005).

3. Determination

(a) Grounds for the right to claim damages in lieu of defect repairs to the seller of a sectional owner;

1) Article 46(1) of the Housing Act provides for the period of occurrence of defects and the scope of defects related to the duty to repair defects to occupants, etc. by the business entity. Since the above provision only provides for the duty to repair defects of the business entity, it is difficult to deem that the right to claim damages in lieu of the defect repair to the business entity of occupants, etc. immediately in accordance with the above provision. In addition, Article 46(3) of the Housing Act provides for the duty to compensate for damages arising from defects in the event of a serious defect in the portions of proof-stress structures, and it is difficult to view the above provision as

2) Article 6 of the Addenda to the Aggregate Building Act provides that "Special provisions of the Housing Act on the management and criteria of aggregate housing are effective unless they violate this Act and infringe on the basic rights of sectional owners, but the liability for warranty of collective housing and repair of defects shall be governed by the provisions of Article 46 of the Housing Act." Thus, it shall be limited to the matters stipulated in Article 46 of the Housing Act. As seen earlier, Article 46 of the Housing Act only provides that the period of occurrence of defects and the scope of defects, which are the requirements for the liability for defect repair to occupants, and the liability for damages due to serious defects in the portions of proof-stress structure (Paragraph 1) and it shall not be deemed that Article 6 of the Addenda of the Housing Act excludes the application of Article 9 of the Aggregate Building Act on the liability for damages in lieu of defect repair to the seller of a sectional owner.

3) A sectional owner has a claim for damages in lieu of defect repair pursuant to Article 667 of the Civil Act, which applies mutatis mutandis to a seller under Article 9 of the Aggregate Buildings Act. However, the defect repair obligation is determined pursuant to Article 46(1) of the Housing Act and Article 59(1) of the Enforcement Decree of the Housing Act, so it is limited to defects recognized as a substitute for defect repair.

(b) Period for occurrence of defects;

1) Article 46(1) of the Housing Act provides that a project owner shall be liable for warranty when “any defect arising from a mistake in construction works occurs within the period of warranty liability not exceeding 10 years from the date of inspection of use of multi-family housing.” The foregoing warranty liability period is interpreted as the warranty liability period rather than the exclusion period.

2) If the date of usage inspection here is interpreted as the initial date of the period of usage inspection, the project undertaker is liable to compensate for the defects that occurred after the date of usage inspection, i.e., the period of usage inspection, and without reasonable grounds, the owner of a multi-family housing does not recognize the right to compensate for the defects that occurred before the date of usage inspection. On the other hand, the owner of a multi-family housing who is not a multi-family housing is discriminated against recognizing the right to compensate for the defects that occurred before the date of usage inspection. Furthermore, due to the retroactive application of the amended Housing Act, the occupant of a multi-family housing is deprived of the right to compensate for the defects that occurred before the date of usage inspection held under the Multi-Family Building Act and the Civil Act by retroactive legislation without reasonable and justifiable grounds, which may be in violation of

On the other hand, if Article 46 (1) of the current Housing Act does not impose any limitation on the starting point of the period of the warranty liability and interpreted that the date of the usage inspection is only the basis for calculating the expiration point of the period of the warranty liability, the project owner has no limitation on the point of time of the occurrence of the defects. Therefore, the project owner has the warranty liability for the defects that occurred before the date of the usage inspection.

If both interpretation methods that conform to the Constitution and the Constitution are possible, it is necessary to protect the fundamental rights of the people and continue the legal effect by making an interpretation consistent with the Constitution. In the current Article 46(1) of the Housing Act, the "use inspection date" is not the starting date of the period for warranty liability but only the basic date on which the expiration point is calculated.

Therefore, regardless of whether the date of the occurrence of the defect in multi-family housing is prior to the date of inspection for use, the seller is liable to compensate for the defect within the period and scope prescribed in attached Table 6 and 7 of the Enforcement Decree of the Housing Act in lieu of the defect repair.

3) Article 59(1) of the Enforcement Decree of the Housing Act provides for the scope of and warranty period for defects for which a project proprietor is liable for repair under attached Tables 6 and 7, and the attached Table 6 stipulates only 1,2, and 3 years of warranty, and explicitly limits liability for repair by recognizing liability only when the liability for repair is limited to the cases where the danger of collapse is likely to collapse in attached Table 7 with respect to the 5 and 10 years of load-bearing structure. Except as otherwise provided for in the Enforcement Decree of the Housing Act, the warranty period of 1 to 3 years shall be applied according to the classification of attached Table 6.

C. Determination as to the Plaintiff’s claim

1) As a result of the appraisal of defects by Nonparty 1 of the first instance trial, comprehensively considering the purport of the entire pleadings, it appears that the defects existing in the proof structure of the apartment of this case did not reach the degree to be judged to be likely to collapse the apartment, and there is no other evidence to acknowledge them. Each defect claimed by the Plaintiff as the defect warranty period of five years and ten years can be recognized as the defect warranty period of one year, two years, and three years, if it were examined as to whether the defect warranty period of one year, two years, and three years.

2) Damages in lieu of defect repairs

A) In light of the aforementioned facts, Gap evidence 3, Gap evidence 4-1 through 8-3, the result of the appraisal of non-party 1 of the first instance trial, the result of the inquiry into the above appraiser of the court of the first instance, and the purport of the whole pleadings, the following facts can be acknowledged. The apartment of this case is likely to hinder the function, aesthetic view, or safety of the housing due to the same defects as those stated in the attached Table 1 and 2 before and after the inspection of use. The plaintiff within the warranty period as to each defect that occurred in the apartment of this case, the warranty period of April 9, 198 is one year for the defendant, the warranty period of 1, 1998 is two years for the defect that was 2 years, and the defect warranty period of 3,000,000 won for the defect warranty period of 3,783,000 won for the defect warranty period of 2,000 won for the defect warranty period of 3,000 won for each of the above defect warranty period of 3.

According to the above facts, since the plaintiff demanded the defendant to continue to repair each of the above defects within the warranty period after moving in, each of the above defects can be presumed to have occurred within the warranty period.

B) Therefore, the Defendant is obligated to pay the Plaintiff damages (320,920,391 won (383,784,252 won x 83.62%) in lieu of the repair of defects that the Plaintiff transferred to the Plaintiff.

3) Whether the entire seal should be affixed

A) The plaintiff's assertion

If only a partial design on the frat portion is the only technical reason, the remaining parts and the pattern vary in appearance from different external aspects, and the aesthetic defect still exists, and accordingly, the transaction price of the apartment of this case falls down. The frating repair of the apartment of this case should be made by way of painting.

B) Determination

There is no evidence to acknowledge the Plaintiff’s assertion that the premise is needed as a remuneration method for the equal heat (as a result of Nonparty 1’s appraisal by Nonparty 1 of the first instance trial, it seems that the area of the part requiring equal remuneration compared to the size of the outer wall is not broad). The Plaintiff’s assertion is without merit.

D. Defendant’s assertion and judgment

1) Determination as to the assertion that the defendant did not have any defect after completion of defect repair

A) The assertion

As the repair of defects occurred within the defect warranty period of one year, two years, and three years in the apartment of this case is completed and the completion of defect repair is confirmed by the plaintiff, there is no further defect.

B) Determination

According to the evidence Nos. 1-1 and 2-2 of this case, the defendant may recognize the fact that the defendant received a certificate of defect repair completion from the plaintiff that the defect warranty period of this case was terminated by the non-party 2 corporation on June 14, 1999 with respect to the defect that the defect warranty period of this case was terminated by the non-party 2 corporation as to the defect warranty period of this case, with the defect warranty period of 1 year or 2 years from the date of the inspection of the use, and 1 year or 2 years from the date of the inspection or July 15, 1998 after the expiration of the defect warranty period.

However, it is insufficient to view that the defect repair completion certificate prepared by the Plaintiff is merely a mere fact that the defect repair work was completed, and it does not remain any longer due to the Defendant’s full repair of all defects. The Defendant’s assertion is without merit.

2) Extinctive prescription defense

A) The assertion

From May 17, 1997, the date following the date of the pre-use inspection, the defect liability period of one year, two years, and three years from the date following the date following the date of the pre-use inspection was expired, and the period of five years, counting from May 17, 200, the date following the expiration of the entire period. The Plaintiff’s right to claim damages in lieu of the Plaintiff’s defect liability has expired due to the completion of the statute of limitations.

B) Determination

(1) Article 59(3) of the Enforcement Decree of the amended Housing Act only provides that the council of occupants' representatives, etc. may demand the project undertaker to repair the defect in the case where the defect occurred within the defect warranty period under paragraph (1) of this Article, and does not provide that the council of occupants' representatives, etc. shall demand the repair of the defect within that period, or that the warranty liability exists during that period. Therefore, the aforementioned defect warranty period cannot be interpreted as the exclusion period of the exercise of the right to demand the repair of defect, and the defect warranty period refers only to the occurrence period of the defect in the language and text, and it does not mean the duration of the defect warranty obligation. Meanwhile, the period of extinctive prescription is run from the time when the obligee can exercise the right. The owner of the apartment after delivery of the apartment, and if the defect occurred after delivery, there is no legal obstacle in exercising the right to demand the repair of

(2) Meanwhile, the right to claim damages in lieu of the defect repair of a sectional owner is a statutory liability recognized under Article 9 of the Aggregate Buildings Act (i.e., the sectional owner of an aggregate building who is not the seller of a sale contract can be held liable for damages). Even if the Defendant’s act of constructing and selling the apartment of this case constitutes a commercial activity, the damage claim in lieu of the repair of defects arising from the Defendant’s defective construction is not a claim arising from commercial activity. Therefore, the right to claim damages in lieu of the defect repair is not a five-year extinctive prescription, but a ten-year extinctive prescription under Article

(3) Since the owner of the apartment of this case appears to have delivered the damage claim in lieu of the defect repair to the defendant around May 16, 1997, which was the date of the pre-use inspection, on the defect that occurred prior to the pre-use inspection, the ten-year extinctive prescription will run from the date of each occurrence for each defect that occurred after the pre-use inspection, which is one year, two years, and three years. Therefore, even if the starting date of the pre-use inspection is calculated from the date of the first pre-use inspection, the ten-year extinctive prescription will run from the date of the first instance court. Therefore, even if the lawsuit of this case was filed on July 5, 2005, before the expiration of the ten-year extinctive prescription period from that time (the sectional owner did not exercise the damage claim at the time of filing the lawsuit by the plaintiff, so even if the extinctive prescription does not cease to exist, the conclusion of the defendant's assertion that the extinctive prescription has expired at least after the sectional owners of 439 households of this case transferred the damage claim in lieu of the defect repair to the plaintiff.

3) Determination as to the assertion that cracks within the permissible cracks do not constitute defects

A) Defendant’s assertion

As a matter of course, cracks of concrete are naturally generated due to the characteristics of concrete built and dried due to water level and temperature changes. Any cracks of less than 0.5mm, which are not likely to corrosion steel bars in consideration of harmful degree or the environment, and are irrelevant to the safety of concrete structures, are within the permissible crack range, and remuneration is not necessary.

B) Determination

Even if fracks within the permissible fracker boundary may cause trouble to the function and safety of the building, such as reducing the inner strength of the structural structure, as the steel is corrosioned and fracked due to the infiltration of rainwater, etc., and if concrete outer walls generated by fracker are exposed, it cannot be seen as unnecessary to repair them. According to the appraisal result by Nonparty 1 of the first instance trial appraiser, it is recognized that the fracks generated from the outer wall, etc. of the apartment of this case are defects requiring remuneration. The Defendant’s assertion is without merit.

4) Determination as to the assertion of limitation of liability

A) The assertion

The apartment of this case has a natural aging phenomenon more than 10 years after the date of occupancy. The defendant faithfully performed the defect repair at the request of the sectional owners, and received the certificate of completion of defect repair for the defect repair for one year, two years, three years, and five years. In the case of the apartment of this case, the circumstance that the defect was expanded due to the management error cannot be ruled out. The damages that the defendant is liable to compensate for to the plaintiff based on the equitable burden of damages and the good faith principle should be reduced to the extent of 40%.

B) Determination

The apartment of this case has passed nine years from the date of inspection for use by the first instance court appraiser 1, and the defendant received a certificate of defect repair completion for the defect warranty period of one year and two years from the plaintiff's request, as seen earlier, and according to the evidence No. 2-3 through No. 5, the defendant made a defect repair for the defect warranty period of five years through the non-party 3 corporation until July 2002, and received a written confirmation of work completion from the head of the apartment management office of this case. Meanwhile, according to the evidence No. 4-7 or 10 and the result of the appraisal by the non-party 1 of the first instance court appraiser No. 1, the defendant has repaired part of the defect warranty of the attached Tables 1 and 2, but the plaintiff still requested the defendant to repair the defect warranty for the defect warranty period of three years from the expiration date of the defect warranty period of three years, and the defendant still requested the defendant to repair the defect.

Considering such circumstances and the fact that natural aging phenomenon may arise following the passage of time on the apartment of this case, it is reasonable to limit the amount of damages that the Defendant is liable to compensate to 70% prior to the amount of damages that the Defendant is liable in light of the equity and good faith principle.

4. Conclusion

As damages in lieu of defect repair to the Plaintiff, the Defendant is obligated to pay 224,64,273 won (320,920,391 won x 70%) and damages for delay at each rate of 5% per annum prescribed by the Civil Act from August 4, 2005 to January 8, 2008, the date following the delivery of a copy of the complaint of this case, which is the day when the Defendant rendered a substantial decision to dispute the existence and scope of the obligation, and 20% per annum prescribed by the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment. The Plaintiff’s claim is justified within the above recognition scope, and the remainder shall be dismissed for reasons without any justifiable reason. The first instance judgment is unfair on the grounds of partial conclusion. The Plaintiff’s appeal is partially accepted and the payment of the amount corresponding to the amount ordered to pay to the Defendant is revoked. The remainder of the Plaintiff’s appeal is dismissed.

Judges Kim Jong-dae (Presiding Judge)

심급 사건

-수원지방법원 성남지원 2007.6.22.선고 2005가합5399

서울고등법원 2008.1.8.선고 2007나65162

-대법원 2008.12.11.선고 2008다12439

원심판결

-수원지방법원 성남지원 2007. 6. 22. 선고 2005가합5399 판결

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