[1] Whether a housing project mutual aid association under the former Housing Construction Promotion Act can provide guarantees other than those listed in the same Act (negative)

[2] The case affirming the judgment of the court below which held that the scope of guarantee by a certificate issued by the housing project mutual aid association to the housing association upon commission of the housing construction business operator who intends to build the housing jointly with the housing association shall be limited to not all damages of the housing association caused by the violation of the joint project agreement of the above business operator

[3] Where a contractor's contract is cancelled due to the contractor's failure to complete the construction by the deadline for completion, the time and deadline for the occurrence of the penalty for delay

[1] Article 47-7 (1) 1 of the former Housing Construction Promotion Act (amended by Act No. 5908 of Feb. 8, 1999) and Article 43-5 (1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 16283 of Apr. 30, 199) limit the scope of guarantee business conducted by a housing business mutual aid association and specify the definition of each guarantee. Thus, a housing business mutual aid association cannot provide guarantee other than that listed in the same Act.

[2] The former Enforcement Decree of the Housing Construction Promotion Act (amended by Presidential Decree No. 16283, Apr. 30, 199) provides only a warranty liability which a housing construction business entity intends to jointly construct a house with a housing association, etc. in relation to the joint project and a guarantee to secure the performance of a house (Article 34-4 subparag. 3 and Article 43-5(1) subparag. 1 and 5 of the Enforcement Decree of the Housing Construction Promotion Act). Since the housing construction business entity's performance guarantee of a joint project agreement to guarantee the housing association, etc. pursuant to a joint project agreement does not stipulate it as a type of guarantee, the court below's determination that the housing business mutual aid association is limited to the guarantee agreement of the housing business entity under the construction guarantee agreement issued by the housing association to the housing association upon entrustment of the housing business entity who intends to build a house and the housing association, etc., and thus, the guarantee agreement itself refers to only the matters arising from the failure of the contract as stipulated in the agreement with the housing association, etc., and its scope refers to the above guarantee agreement itself.

[3] Where a contractor cancels a contract after the expiration of the deadline for completion without completing the construction work within the deadline for completion, the period of compensation for delay is the following day after the deadline for completion, and the period of completion is the time when the contractor could cancel the contract (not when the contract is actually cancelled) based on the time when the contractor could cancel the contract due to the suspension of construction or other reasons for cancellation (not when the contract is cancelled).

[1] Article 47-7 (1) 1 of the former Housing Construction Promotion Act (amended by Act No. 5908 of Feb. 8, 1999); Article 43-5 (1) of the former Enforcement Decree of the Housing Construction Promotion Act (amended by Presidential Decree No. 16283 of Apr. 30, 199) / [2] Article 47-7 (1) 1 of the former Housing Construction Promotion Act (amended by Act No. 5908 of Feb. 8, 199); Article 43-5 (1) of the former Enforcement Decree of the Housing Construction Promotion Act (amended by Presidential Decree No. 16283 of Apr. 30, 199) / [3] Articles 387, 398, and 664 of the Civil Act

[1] Supreme Court Decision 92Nu15673 delivered on July 27, 1993 (Gong1993Ha, 2429) / [3] Supreme Court Decision 88Meu6273, 6280 delivered on July 25, 1989 (Gong1989, 1281), Supreme Court Decision 95Da18376 delivered on September 5, 1995 (Gong1995Ha, 3353 delivered on February 24, 1998), Supreme Court Decision 9Da14846 delivered on October 12, 1999 (Gong199, 2353)

o District 1 Residential Environment Improvement Association (Attorney Yellow-chul, Counsel for the plaintiff-appellant)

Housing Guarantee Co., Ltd. (Attorney Oh Jong-hee, Counsel for defendant-appellant)

Busan High Court Decision 98Na12652 delivered on March 17, 2000

All appeals are dismissed. The costs of appeal are assessed against each party.

The grounds of appeal are examined.

1. As to the Plaintiff’s appeal

A. On the first ground for appeal

The former Housing Construction Promotion Act (amended by Act No. 5908 of Feb. 8, 199, hereinafter referred to as the "Act") and its Enforcement Decree (amended by Presidential Decree No. 16283 of Apr. 30, 199, hereinafter referred to as the "Enforcement Decree") limit the scope of guarantee businesses conducted by the Housing Business Mutual Aid Association and stipulate the definitions of each guarantee specifically (Article 47-7(1)1 of the Act and Article 43-5(1) of the Enforcement Decree of the Housing Business Mutual Aid Association cannot provide any guarantee other than those listed in the Act (see Supreme Court Decision 92Nu15673 of Jul. 27, 1993, 200). Since the Enforcement Decree of the Act provides that the housing business association is merely a guarantee for the construction of the Plaintiff’s housing association, which is a joint business to guarantee the construction of the Plaintiff’s housing association, and the housing business association is merely a guarantee for the construction of the Plaintiff’s housing business under Article 45 of the Enforcement Decree.

Article 1 of the Construction Guarantee Clause applicable to the instant guarantee provides that "The Housing Business Mutual Aid Association shall compensate for the damage suffered by the guarantee creditor due to a partner's failure to perform the contract as stipulated in the joint agreement concluded with the guarantee creditor, such as a housing association, etc., according to the matters and the terms and conditions set forth in this guarantee clause." However, since the performance guarantee for the joint project agreement itself is not included in the type of guarantee listed in the law, it is reasonable to deem that the term "contract" in this context refers not to the joint project agreement itself, but to only the contract provisions concerning the performance of construction.

In the same purport, the court below held that the scope of guarantee under the letter of guarantee in this case is not limited to all damages incurred by the non-party company due to the non-party company's breach of a joint business agreement, but limited to the damages incurred by the non-party company's non-performance of its construction obligation, and there is no error of law by misapprehending the legal principles as to the scope of guarantee. The Supreme Court's decision cited in the ground of appeal is related to the contract guarantee certificate issued by the construction mutual aid association pursuant to the former Construction Mutual Aid Association Act (amended by Act No. 4600 of Dec. 10, 1993) and it is not appropriate to invoke this issue, different from this case where the construction guarantee certificate issued by the housing project mutual aid association is

B. On the second ground for appeal

Where a contractor cancels a contract after the deadline for completion without completing the construction work by the deadline for completion, the period of the delay compensation is the following day after the deadline for completion, and the period of completion is the time when the contractor could cancel the contract due to the suspension of construction or other reasons for cancellation (not when the contract is actually cancelled) and the contractor could request another contractor to complete the construction of the same building (see, e.g., Supreme Court Decisions 88Da6273, 6280, Jul. 25, 1989; 95Da3806, 38073, Feb. 24, 199; 9Da14846, Oct. 12, 199).

In the same purport, the court below held that the delayed period is about 26 months from July 1998 to August 19, 198 after the date following the scheduled date for completion of the instant joint project, counting from February 19, 1998 when the Plaintiff’s association could have rescinded the instant joint project agreement, and as of August 19, 200 when 30 months have passed after requesting another business entity to complete the instant joint project, which is anticipated to be required for the completion of the said building, the court below held that the delayed period was about 26 months from July 1998 to August 19, 200, and there is no error of law by erroneous calculation of the delayed period, and there is no error of law in the calculation of the delayed period. Considering that the time for the delayed period should be recognized as the 30-month period from February 19, 199, when the contract could have been rescinded, or that the period should be recognized as the 30-month period from February 19, 1998.

2. As to the defendant's appeal

The defendant did not submit the appellate brief, and the appellate brief does not contain any indication in the grounds of appeal.

3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Yong-woo (Presiding Justice)