205Da56193 Compensation (as referred to in this paragraph)

205Da56209 (Consolidation) Compensation for damages (a consolidation)

It is the same as the entry in the attached plaintiff list.

[Judgment of the court below]

Attorney Kim Yong-chul

Law Firm Hank, Counsel for defendant-appellant

[Defendant-Appellee]

Seoul High Court Decision 2004Na77034 decided August 26, 2005;

204Na77041 (Joint Judgment)

June 26, 2008

The part of the judgment of the court below against the defendant regarding the claim for damages due to the floor soundproof defect shall be reversed, and this part of the case shall be remanded to the Seoul High Court.

All of the plaintiffs' appeals and the defendant's remaining appeals are dismissed.

The grounds of appeal are examined.

1. As to the ground of appeal No. 1 of the plaintiffs, the term "defect" means that a building, the construction contract of which is generally completed, has a structural and functional defect different from the contents of the construction contract, or does not have quality normally required under the transactional norms, and whether the building is defective must be determined by comprehensively taking into account various circumstances, including the content of the contract between the parties concerned, whether the building was constructed as designed, and whether the building meets the standards

Meanwhile, Article 31(1) of the former Housing Construction Promotion Act (amended by Act No. 6916 of May 29, 2003) provides that the criteria, etc. for the construction of housing constructed and supplied by a project proprietor shall be prescribed by the Presidential Decree. Article 9(1) of the Regulations on Standards, etc. for Housing Construction (amended by the Presidential Decree No. 14450 of December 23, 1994) provides that where the noise level of a branch where a apartment house is constructed exceeds 65 cc in accordance with the noise measurement standards publicly announced by the Minister of Construction and Transportation after consultation with the Minister of Environment, apartment houses shall be placed at a place lower than a horizontal distance of 50 meters from railroads, expressways, exclusive roads, or other noise generating facilities (including facilities for which the installation plan has become final and conclusive) or soundproof facilities, such as soundproof walls, forests, etc., of the apartment house shall be installed so as to be less than 65 cc in a noise level of 65 cc.

Article 9(1) of the Regulations on Standards, etc. for Housing Construction (Public Notice No. 463 of October 15, 1986) provides that the average noise level shall be calculated by aggregating the actual noise level of the first floor and the estimated noise level of the fifth floor in the case of a multi-family housing with at least five floors. In the case of a planned development area, planned urban planning area, etc., if the target noise level cannot be claimed by the actual side, the predicted method may be applied. In the case of a planned development area, planned urban planning area, etc., a road or a railroad is newly constructed in an adjacent multi-family housing and an environmental impact assessment shall be conducted in accordance with the main criteria. Thus, in the case of an apartment housing with at least five floors, the determination of whether the above laws and regulations are violated should be made on the basis of a noise level calculated by aggregating the noise level of the first and the fifth floors.

In light of the above legal principles and relevant regulations and records, although the reasoning of the court below is somewhat inappropriate, in this case where there are no circumstances to deem that the existence of defects should be determined in the above other standards, the court below is justified in its conclusion to reject this part of the plaintiffs' claims by deeming that there are no defects in the soundproof walls of this case. Therefore, this part of the grounds of appeal by the plaintiffs is without merit.

Examining the reasoning of the lower judgment in light of the evidence admitted by the lower court, the lower court’s decision is 2004.

7. The judgment of the court below that there is a defect in the short-term and non-performing construction only for the households that caused the determination according to the result of the self- inquiry inquiry of the 19.19. Therefore, the plaintiffs' assertion in this part of the grounds of appeal is without merit.

3. As to the Defendant’s first ground of appeal

According to the reasoning of the judgment below, the court below determined that the above decision of the court below is just, and there is no error in the misapprehension of the right since the fence of this case was installed in violation of neighboring land, and the defect repair cost is the cost of reconstruction of the fence, and the plaintiffs' claim for reconstruction cost as the defect repair cost does not constitute an abuse of right. In light of the records, the above decision of the court below is justified and there is no error in the law as otherwise alleged in the ground of appeal.

4. As to the Defendant’s second ground of appeal, Article 14(3) of the Regulations on Standards, etc. of Housing Construction before the amendment by Presidential Decree No. 17972 of Apr. 22, 2003 (hereinafter “former Regulations”) provides that the floor level of an apartment house should be sufficiently obstructed from the floor impact of each floor. However, Article 14(3) of the Regulations on Standards, etc. of Housing Construction as amended on April 22, 2003 (hereinafter “amended Regulations”) provides that the floor level of an apartment house shall be up to 58 cubic meters in light of the floor impact impact of each floor (referring to the floor impact of a relatively small and solid shocking sound).

However, in determining "a structure which can sufficiently block floor shocks between different floors" as referred to in the preceding provision before the amendment, the provision on light shocks in the proviso of Article 1 of the Addenda to the amended provision is enforced one year after its promulgation, and the provision on light shocks in the proviso of Article 1 of the Addenda to the amended provision is enforced one year after its promulgation, and the provision on light shocks in the proviso of Article 1 of the amended provision.

7.1. The amended provisions of Article 14 shall apply to the housing construction project for which the approval of the project plan under Article 33 of the Housing Act has been applied after the enforcement of the same provision, and the amended provisions of Article 2 of the Addenda expressly provide that the time of application of the amended provisions shall be the same as the amended provisions in the Regulations on Standards, etc. for Housing Construction as amended by Presidential Decree No. 18929 on June 30, 2005 or one of the criteria for the standard floor structure determined and publicly notified by the Minister of Construction and Transportation shall be selected. In light of the fact that the current status or technical level at the time of the construction of the apartment building of this case cannot be deemed the same as that at the time of the enforcement of the amended provisions, the amended provisions shall not be applied to the apartment housing for which business approval has been granted before the enforcement of the amended provisions.

Therefore, in determining the conformity with the pre-amended provisions, the amended provisions can only serve as a ground for consideration, and cannot be determined only by the amended provisions, and as well as various circumstances such as the current construction status, floor soundproof level, the level of technical level at the time of the construction of the apartment in this case, and the background leading up to the establishment of the standard for the amended provisions should be comprehensively considered and determined.

In light of the above legal principles and records, the court below determined that the light floor soundproof noise of the apartment of this case exceeding the amended provision is not only the standard of the amended provision but also the appropriate standard of the previous provision before the amendment without examining the above various circumstances and without interpreting the meaning of the preceding provision before the amendment, and that there was a defect in light of the above legal principles as to whether the floor soundproof noise was found defective, which affected the conclusion of the judgment.

Therefore, the defendant's argument in this part of the grounds of appeal is justified even if it does not proceed to the remaining point.

5. Conclusion

Therefore, the part of the judgment of the court below against the defendant regarding the claim for damages due to the floor soundproof defect is reversed, and that part of the case is remanded to the Seoul High Court. The plaintiffs' appeal and the defendant's remaining appeal are dismissed. It is so decided as per Disposition by the assent of all participating Justices

Justices Kim Ji-hyung

Justices Shin Hyun-chul

Justices Jeon Soo-ahn

State Justice Cha Han-sung

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