C. The council of occupants' representatives (Law Firm Macro, Attorneys male Won-won et al., Counsel for the plaintiff-appellant)

New CD-H Co., Ltd. and two others (Law Firm Kim, Kim & Lee, Attorneys Lee Hon et al., Counsel for the plaintiff-appellant)

August 27, 2010

Seoul Central District Court Decision 2008Gahap104760 Decided February 12, 2010

1. Of the judgment of the court of first instance, the part of the judgment against the defendant new CD-based industry corporation is revoked, and the plaintiff's claim against the defendant new CD-based industry corporation falling under the part of the revocation is dismissed.

2. Of the judgment of the court of first instance, the part regarding the land trust in Korea and the defendant Seoul Guarantee Insurance Co., Ltd. shall be modified as follows:

The Plaintiff

A. The Defendant Korea Land Trust Co., Ltd. shall pay 284,161,432 won and 230,620,356 won per annum from December 12, 2009 to February 12, 2010; 20% per annum from the next day to the date of full payment; 53,541,076 won per annum from December 12, 2009 to the date of full payment; and 5% per annum from the next day to November 12, 2010 to the date of full payment; and 20% per annum from the next day to the date of full payment;

B. Defendant Seoul Guarantee Insurance Co., Ltd.

1) The amount of KRW 107,704,467 out of the amount described in paragraph (a) above and KRW 101,00,000 among them shall be paid from November 4, 2008; the remainder of KRW 6,704,467 shall be from December 12, 2009 to February 12, 201; and the amount of KRW 5% per annum from the next day to the date of full payment; and the amount of KRW 20% per annum from the next day to the date of full payment;

2) The amount of KRW 26,561,983 and its interest shall be paid 5% per annum from December 12, 2009 to February 12, 2010, and 20% per annum from the next day to the day of complete payment.

3. The plaintiff's appeal against the defendant new CD-style industry corporation is dismissed.

4. The plaintiff bears total costs of litigation between the plaintiff and the defendant new CD-based industry corporation. 20% out of total costs of litigation between the plaintiff and the defendant's land trust between the defendant and the defendant's land trust shall be borne by the plaintiff, and 80% by the above defendant, respectively. 25% of total costs of litigation between the plaintiff and the defendant's Seoul Guarantee Insurance Co., Ltd shall be borne by the plaintiff

5. The monetary payment portion under paragraph (2) of this Article may be provisionally executed.

1. Purport of claim

The plaintiff shall jointly and severally pay to the plaintiff 358,071,30 won and the amount at the rate of 20% per annum from the day after the copy of the claim claim is served on December 11, 2009 to the day of complete payment, and the defendant Seoul Guarantee Insurance Co., Ltd. (hereinafter "the defendant company") shall jointly and severally pay to the plaintiff 358,071,330 won and 134,79,430 won among the above 358,071,330 won and its 101,00,000 won from the day after the copy of the complaint of this case was served, to the day after the day after the copy of the claim of this case was served, to the day after the day after the day after the copy of the claim of this case was served, to the day after the day after the copy of the claim of this case was served on December 11, 2009, to the day after the day after the copy of the claim of this case was served.

2. Purport of appeal

가. 원고 : 제1심 판결 중 아래에서 지급을 명하는 원고 패소부분을 취소한다. 원고에게, 1) 피고 토지신탁은 60,000,000원 및 이에 대하여 2009. 12. 11.자 청구취지 및 청구원인 변경신청서 부본 송달 다음날부터 다 갚는 날까지 연 20%의 비율에 의한 금원을, 2) 피고 건설회사는 피고 토지신탁과 연대하여 위 1)항 기재 금원 중 35,520,179원 및 이에 대하여 2009. 12. 11.자 청구취지 및 청구원인 변경신청서 부본 송달 다음날부터 다 갚는 날까지 연 20%의 비율에 의한 금원을, 3) 피고 보험회사는, ㈎ 피고 건설회사와 연대하여 위 2)항 기재 13,463,058원 및 이에 대하여, ㈏ 3,320,249원 및 이에 대하여, 각 2009. 12. 11.자 청구취지 및 청구원인 변경신청서 부본 송달 다음날부터 다 갚는 날까지 연 20%의 비율에 의한 금원을 지급하라.

B. Defendants: The part of the judgment of the court of first instance against the Defendants shall be revoked, and all of the Plaintiff’s claims against the Defendants falling under the revoked part shall be dismissed.

1. Basic facts

The court's explanation on this part is the same as the corresponding part of the judgment of the court of first instance, and thus, citing it as it is by the main text of Article 420 of the Civil Procedure Act.

2. Both parties' defense and determination on the scope of defects, etc.

The same shall apply to the corresponding parts of the judgment of the first instance.

3. Determination as to the claim against Defendant Construction Company

A. The plaintiff's assertion

Article 46(1) of the Housing Act amended by Act No. 7520 of May 26, 2005 provides that the defect repair obligor is the project proprietor (including the owner who constructed the apartment house for the purpose of sale after obtaining a building permit under Article 8 of the Building Act and the contractor who performs the acts under Article 42(2)2 of the Building Act). The apartment of this case was inspected on October 27, 2006 after the enforcement of the amended Housing Act. Thus, the Defendant Construction Company, the contractor of the new apartment construction of this case, is also liable for damages due to the defect that occurred in the apartment of this case from the owner of the new apartment of this case, who acquired the damage claim from the owner of the new apartment of this case pursuant to Article 46(1) and (3) of the Housing Act.

B. Determination

The defendant construction company is a contractor who has been awarded a contract for the construction of the apartment in this case from the defendant land trust. Article 46 (1) of the Housing Act provides only the "liability to repair defects" of the business entity, including the contractor, and Article 46 (3) of the same Act provides the business entity's liability to compensate for damages in the event of a serious defect in the proof-proof structure. Meanwhile, Article 9 of the Multi-Family Building Act provides only the warranty liability of the "person who constructed and sold the apartment house" as to the warranty liability of the "person who constructed and sold the apartment house". Thus, it is difficult to deem that the construction contractor has the liability to compensate for damages in lieu of the defect repair, and there is no other ground to acknowledge it (see Supreme Court Decision 2008Da12507, Jan. 30, 2009). The plaintiff's

4. Determination on the claim against the Defendant’s land trust

(a) Occurrence of liability for damages;

1) The Defendant’s land trust is a project undertaker who constructed and sold the instant apartment, and is liable to compensate the Plaintiff for damages in lieu of the repair of defects existing in the instant apartment within the scope of the said damage claim that was transferred from the sectional owners of the instant apartment under Article 46(1) and (3) of the Housing Act.

2) The Defendant’s land trust asserts that, among the instant apartment buildings, the Plaintiff is unable to exercise the right to claim the repair of defects under Article 46(1) of the Housing Act, since the Plaintiff did not purchase the instant apartment as a substantial business entity that had entered into a trust contract with the Defendant’s land trust and carried out the instant new apartment construction project, the Plaintiff cannot exercise the right to claim the repair of defects.

According to the evidence evidence Nos. 5 to 8, 204, 2004, 2008, 2007, 2007, 2007, 2007, 2007, 333 households of the apartment of this case (the "owner" column of attached Form No. 1) transfer the ownership of the unsold apartment to the Defendant Construction Company and 33 households of the apartment of this case (the households indicated as two sources in the "owner" column of attached Form No. 1) as the co-ownership of the divided ownership of the apartment of this case is recognized.

However, in full view of the above evidence and evidence evidence No. 12, in newly constructing the apartment of this case, all legal procedures, such as building permission, were conducted in the name of the Defendant land trust. The seller is a land trust in the supply contract prepared in the course of selling the apartment of this case, and the name of the two members is not specified in the contract, and the name of the two members is not specified in the contract. Although the relationship with the Defendant land trust can be seen as a substantial project owner in the relationship with the Defendant land trust, it is reasonable to view that the Defendant land trust has the status as the project owner under Article 46 of the Housing Act.

In addition, as seen above, although two dust sources are not the owners of the apartment in this case, it is recognized that they are not the buyers, according to Article 46 of the Housing Act and Article 59 of the Enforcement Decree of the same Act, the project proprietor under Article 46 of the Housing Act is responsible for compensating occupants for damages caused by defects. According to Article 2 of the Housing Act, the concept of occupants under the Housing Act does not include the owners of the housing, and does not include any provision excluding the owners who are not the buyers. Thus, the project proprietor subject to Article 46 of the Housing Act is the defendant land trust and the project proprietor subject to Article 46 of the Housing Act is the owner of the apartment in this case is the owner of the apartment in this case, and the two dusts are not the owners of the apartment in this case, the right to claim the repair of defects

3) The Defendant land trust asserts that the expenses incurred in repairing the defects that occurred in the apartment of this case under Article 17 of the Land Trust Contract for Sale-type, shall be borne by the Defendant Construction Company, the beneficiary of the instant trust contract, and the Defendant land trust, the trustee, should receive the expenses from the trust property or beneficiary, and thus, the Defendant land trust, the trustee, has the right to seek reimbursement of the expenses incurred in repairing the defects from the two beneficiaries, and therefore, the Defendant land trust, the trustee, has the right to claim reimbursement of the expenses incurred in repairing the defects from the two beneficiaries, and therefore, the Defendant land trust is offset against the damages claim of 33 households from the apartment of this case, the Plaintiff acquired from the two generations, from

According to the evidence No. 10 (the same as evidence No. 7), around July 2004, the defendant Construction Company, the truster, entered into a sale-type land trust agreement with the defendant Land Trust, which is the trustee. Article 13 of the above trust agreement provides that "The beneficiary of this trust shall be two thousand won and the defendant Construction Company," and Article 17 (1) 4 of the above trust agreement provides that "the repair, preservation, and improvement expenses of the trusted real estate and the fire insurance premium shall be borne by the beneficiary." In paragraph (2) of the above provision, the defendant land trust shall pay the expenses under paragraph (1) from the trust property, and if it is impossible to pay from the trust property, it may be claimed and received from the beneficiary, and if necessary, it may be deposited to the beneficiary in advance."

However, in full view of the evidence No. 10 and evidence No. 12 as a whole, the warranty liability for the land trusted during the period of the trust or after the expiration of the trust period shall be borne by two members, and the warranty liability for the defect of the building shall be borne by the defendant land trust in principle. In the internal relationship of the building, it can be acknowledged that the actual construction contractor agreed to bear the expenses for the defendant land trust, which is the execution company the external responsibility of which is the defendant new CD Institute, and in addition to the above acknowledged facts, Article 17 of the above-sale-type land trust contract merely provides that the beneficiary bears the expenses incurred for the trust property during the execution of the trust project. The defect repair expenses are borne by the defendant land trust, the contractor of the construction project, and the defendant land trust, the project owner, bears the expenses for the repair and preservation of the real estate trusted in the construction contract. In light of the fact that the construction contractor bears the expenses for the defect repair and preservation

Therefore, the above offset defense, which is based on the premise that two members, who are beneficiaries of the instant trust contract, bear the cost of defect repair, is without merit.

B. Scope of liability for damages

1) The Plaintiff’s bond transferee and the Plaintiff’s bond transferee’s share of the leased area

As seen earlier, the household to which the Plaintiff transferred the damage claim in lieu of the defect repair in this case is 177 households out of the total 224 households of the sectional owners of the apartment in this case, and according to the respective entries in Gap evidence Nos. 4 through 8 (including the provisional number), the results of appraisal of the non-party’s defects and the purport of the entire pleadings, as shown in the separate sheet, the entire area of the apartment in this case is 21,836.82 square meters. Of these, the whole area of the apartment in this case is 16,615.91 square meters of the total area of the 177 household that transferred the damage claim in lieu of the defect repair to the Plaintiff. Of them, it is clear that the ratio of the total area of the entire area of the household in lieu of the defect repair is 76.09% (16,615.91 square meters ± ± 21,836.82 square meters).

2) Calculation of damages

The 336,741,672 of the total expenses incurred in repairing the defects in the common area of the apartment of this case is as seen above. According to the appraiser's appraisal of the non-party, according to the result of each fact-finding conducted by the appraiser of this court, the 177 household's damages claim in lieu of the defect repair can be acknowledged as constituting 98,975,053 as shown in the list of the previous generation units. Accordingly, the 177 household's damages claim in lieu of the defect repair to the plaintiff is 256,226,738 won (36,741,672 won x 76.09% of the total cost of the defect repair of the common area of the previous generation x 76.09% of the total cost of the common area x 76.09% of the area ratio of the area of the exclusive area of the previous generation x less than KRW 75,201,291 won (=256,266,278,9375 won).

3) Limitation on liability

However, in light of all the circumstances indicated in the argument in this case, it is difficult to strictly distinguish the part caused by the mistake in the construction of the Defendant Construction Company from the defect in the apartment of this case, among the defect in this case, from among the defect in the apartment of this case, the part caused by the mistake in the construction of the Defendant Construction Company and the part caused by the natural deterioration from among the defect in the apartment of this case, and the possibility that the defect in the apartment of this case may have been expanded due to the mistake in the management of the sectional owners of the apartment of this case cannot be ruled out at all, the amount of damages that the Defendant Land Trust and Construction Company shall compensate for to the plaintiffs shall be limited to 80% of the amount recognized in the above 2) in accordance with the principle of fairness or the principle of good faith.

C. Sub-committee

Therefore, with respect to the Defendant’s land trust, 284,161,432 won (35,201,791 won x 80%) and 230,620,356 won cited in the judgment of the first instance court among them, after the date of occurrence of the claim for damages in lieu of the defect repair to the sectional owners of the apartment of this case, the Defendant’s land trust is obligated to pay 5% per annum from the following day after December 12, 2009 to the date when the copy of the claim for alteration of the purpose of the claim and the cause of the claim were served on the Defendant’s land trust, and it is obvious that it is reasonable for the Defendant’s land trust to dispute about the existence and scope of the obligation of this case from the date after December 12, 2009 to February 12, 2010; 20% per annum from the next day to the date of full payment; 30% per annum from 20% per annum to the date of performance order; 20% per annum 363614.25% per annum.

5. Determination as to the claim against Defendant insurance company

(a) The occurrence of liability for defect repair;

According to the facts found above, as a person who guaranteed the obligation to repair defects of the Defendant Construction Company under the instant guarantee agreement, the Defendant Insurance Company is obligated to pay the Plaintiff, the guarantee creditor, a warranty creditor, a warranty bond within the scope of the guaranteed amount of the instant guarantee agreement, a warranty bond equivalent to the repair cost incurred within each warranty period after the inspection of the instant apartment

(b) Expenses for repairing defects by the warranty period and the scope of each guarantee contract of this case;

According to the above facts, the warranty liability amount of KRW 48,54,508 under the Enforcement Decree of the Housing Act for the defect warranty of KRW 24,094,712 + 24,49,7966), the warranty liability amount of KRW 25,471,275 (= public 23,919,510 + KRW 1,510 + KRW 1,51,7655) for the defect warranty of KRW 31,453,275, the warranty liability amount of KRW 31,453,192 + KRW 329,129,1550 + KRW 329,329,575, KRW 279,575, KRW 279,575, KRW 297,575, KRW 297,5375, KRW 329,575, KRW 329,275,5329,294,525,

C. Limitation on liability

As seen earlier, as the liability for damages of Defendant land trust was limited to 80% in accordance with the principle of fair apportionment of damages or the principle of good faith, the liability for guarantee by Defendant insurance company is limited to the scope of each warranty bond within the scope of each warranty bond under each guarantee contract of this case, to the extent that the repair cost of each defect in each warranty period has been reduced

Therefore, the warranty bond to be paid by the defendant insurance company to the plaintiff is 134,266,450 won [(48,544,508 won for the defect warranty liability of one year + 25,471,275 won for the defect warranty liability of two years + 31,453,192 won for the defect warranty liability of three years + 24,412,332 won for the defect warranty liability of five years + 37,951,756 won for the defect warranty liability of ten years]; 80%).

D. The scope of joint liability with the Defendant’s land trust

The defendant insurance company bears the liability for damages in lieu of the repair of defects against the plaintiff, and the defendant's land trust bears the liability for damages in lieu of the repair of defects against the plaintiff, and each of the above obligations is in a non-joint and several relationship.

Of the above debts, 105,61,924 won (28,968,660 won (336,741,672 won) calculated according to the ratio (76.09%) of the size of the portion of exclusive ownership of the former generation (76.09%) excluding the repair expenses (197,877,67,269 won) for the defects that occurred after the inspection of use among the defect repair expenses for the portion of exclusive ownership of the former generation (336,741,672 won - 197,877,269 won) x 134,630,584 won (28,660,600 + 105,661,7467,7467,467,4767,4767,4769 won) to the Plaintiff, the remainder of the liability of Defendant trust excluding the amount of the liability liability of Defendant trust to be paid to the Plaintiff.

E. Sub-committee

Therefore, Defendant insurance company, the insurer of each contract of this case, is jointly and severally with Defendant land trust, and as to the above KRW 107,704,467 as well as KRW 101,00,00 from the date of the occurrence of the Plaintiff’s claim for the warranty bond against Defendant insurance company, and as to the remainder of KRW 6,704,467 ( KRW 107,704,467 - 101,000) from November 4, 2008 to the date following the date on which the Plaintiff’s claim for the warranty bond against Defendant insurance company was delivered as requested by the Plaintiff, and as to the remainder of KRW 6,704,467 ( KRW 107,467 - 101,000) from the date on which the copy of the complaint of this case was delivered as requested by the Plaintiff, it is reasonable for Defendant 2 to pay 10% annual interest rate from the date following the delivery of the claim and the cause of the claim.

5. Conclusion

Therefore, the plaintiff's claim against the defendant land trust and the defendant insurance company shall be accepted within the extent of the above recognition, and the plaintiff's claim against the defendant land trust, the remaining claim against the defendant insurance company, and the claim against the defendant construction company shall be dismissed, as it is without merit.

However, the part against Defendant Construction Company in the judgment of the court of first instance is unfair with different conclusions, and thus, the appeal against Defendant Construction Company is accepted, and the part against Defendant Construction Company is revoked, and the plaintiff's claim against Defendant Construction Company corresponding to the revoked part is dismissed.

In addition, since the part of the judgment of the court of first instance concerning the Defendant land trust is unfair by partially different conclusions, the Plaintiff’s appeal against the Defendant land trust is partially accepted, and it is modified as above. Since the part against the Defendant insurance company in the judgment of the court of first instance is partially unfair by partially different conclusions (in the case of the Defendant’s land trust and the secondary joint and several relationship with the Defendant’s land trust, omitted it), the part of the appeal by the Defendant insurance

The remainder of the judgment of the court of first instance is justifiable, and it is so decided as per Disposition by the plaintiff's appeal against the defendant construction company.

Judges Gangnam-gu (Presiding Judge) Kim Jong-ok