209 Gaz. 2866 Damage

○○ apartment council of occupants' representatives

Kim Jong-si

Representative Chairman Kim ○○

Law Firm Roen case

Attorney Kang Chang-ok, and Park Jae-chul

Attorney Sung-soo et al.

1. ○○ Housing Co., Ltd. which is the taking-off of lawsuit by ○○;

Seoul Central District

○○○, Kim○○

2. ○○ Stock Company;

서울 영등포구 |

South ○○

[Judgment of the court below]

1, 2012

20122, 9

1. The Plaintiff:

A. Defendant ○○ Housing Co., Ltd. shall pay 767,434,354 won and 110,000,000 won from April 1, 2009; 657,434,354 won per annum from March 16, 2011 to February 9, 2012; and 20% per annum from the following day to the date of full payment;

B. Defendant ○○ Co., Ltd. shall pay the amount of KRW 282,254,327 among the amount stated in the above paragraph (a) above, and KRW 110,00,00 among them, to KRW 172,254,327 from March 31, 2009; and KRW 172,254,327 from March 16, 201 to February 9, 2012; and KRW 5% per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims against the defendants are dismissed.

3. Of the costs of lawsuit, 2/5 are assessed against the Plaintiff, and the remainder are assessed against the Defendants.

4. Paragraph 1 can be provisionally executed.

The Plaintiff

1. With respect to ○○ Housing Co., Ltd., Defendant 1,220,000 won and 110,000,000 won among them, 5% per annum from the day following the day of service of a copy of the complaint of this case to the day of service of a copy of the application for correction of the claim of this case and 1,10,000,000 won shall be paid 1,220,000 won per annum from the day following the day of service of a copy of the application for correction of the cause of the claim of this case and 20

2. As to KRW 510,00,000 and KRW 110,00,000 among the money listed in paragraph (1) above, Defendant ○○ Co., Ltd. shall pay 5% per annum from the day following the service date of a duplicate of the complaint of this case for KRW 510,000,000 among the money listed in paragraph (1) above to Defendant ○○○ Housing Co., Ltd. and each of them; and as to the remaining KRW 400,000,000,000 per annum from the day following the service date of a duplicate of the complaint of this case for correction of the purport of this case and the cause of

1. Basic facts

A. Status of the Parties

(1) The Plaintiff is an autonomous management body that is composed of occupants for the management of ○ apartment 6 Dong 516 households in AI in Kimhae-si (hereinafter “the apartment of this case”). (2) ○○ Co., Ltd. is a company that constructed and sold the apartment of this case, and a company that was divided into the Defendant ○○ Housing Co., Ltd. (hereinafter “○○ Housing”) and the Defendant ○○ Housing Co., Ltd. (hereinafter “○○ Housing”) for the purpose of housing projects from ○○ Co., Ltd. to ○○ for the purpose of housing projects.

(3) Defendant 00 Co., Ltd. (hereinafter referred to as “O”) is a corporation that has entered into a contract for the repair of defects on the instant apartment complex with 00 stock companies. However, the conclusion of a contract for the repair of defects and the inspection of the instant apartment complex.

(1) On August 30, 2004, CO Co., Ltd. entered into each of the warranty contracts (hereinafter “each of the warranty contracts of this case”) with Defendant ○○ as the guarantee creditor with respect to the apartment of this case as the Kimhae market, and issued each of the warranty contracts of this case according to the respective warranty contracts of this case by Defendant OO.

A person shall be appointed.

(2) According to Article 4 subparagraph 4 of the warranty clause applicable to each of the instant warranty contracts, Defendant ○○ is not liable for a guarantee for any defect that occurred prior to the construction inspection, such as construction in violation of the provisions relating to the construction or non-construction differently from the design drawings, design defects, housing construction standards, etc., error under the Building Act, error stated in the temporary approval for use, and other defects.

(3) Around October 12, 2004, the apartment of this case obtained approval for use. At that time, the guarantee creditor of each of the defect repair reports on each of the instant guarantee contracts was organized by the Plaintiff, who was the council of occupants' representatives of the apartment of this case, changed to the Plaintiff in the Kim Sea market. Requests for the discovery of defects and the repair of defects.

(1) In constructing the instant apartment, ○○○ Co., Ltd. failed to construct or perform defective construction in accordance with the design drawings, and constructed the instant apartment in a way different from the design drawings, thereby causing defects to the section for common use, such as the building outer wall, interior heat, water leakage, etc. of the instant apartment, and the section for exclusive use.

(2) The resident and the plaintiff of the apartment of this case continuously requested the repair work from January 2006 to ○○○ Co., Ltd. to perform part of the repair work, but there is a defect in the apartment of this case as of the present time since the repair was not completely performed.

(d) Quantity of damage claims in lieu of defect repairs;

(1) All sectional owners of the instant apartment are 516 households. Among them, 508 households transferred the right to claim damages in lieu of defect repair against OO to the Plaintiff, and notified the transfer to ○○○ Co., Ltd.

(2) Meanwhile, the ratio of the apartment of this case’s apartment to the section of exclusive ownership of this case owned by the 508 household that transferred the damage claim in lieu of defect repair as above is 31 square meters in total and 84.752 meters in total, is 98.44% (=(508:516) x 100, and less than two decimal places).

[Ground of recognition] Unsatisfy facts, Gap evidence 1, Eul evidence 1 to 10 (including each number if there are separate numbers), the result of the on-site inspection by this court, the result of the appraiser Park Park ○'s appraisal, the purport of the whole pleadings

2. Determination on the scope and amount of defects

A. Determination on the scope of defects

(1) Judgment on the Plaintiff’s assertion

Since the plaintiff asserts that the defects in the attached Form exist in the apartment of this case, it can be recognized that there are defects corresponding to the items in the attached Form, in full view of the results of the part of the appraiser Park ○○, as a result of the on-site inspection conducted by this court, and the fact inquiry conducted by the appraiser Park ○, and the whole purport of the argument.

(2) Judgment as to the defendants' assertion

(A) The assertion as to rupture less than 0.3m of permissible rupture width

The defendants asserts that the crack less than 0.3m can not be seen as a defect in the construction, and that there is no problem in the aspect of the safety durability of the structure, and thus there is no risk in the function of safety, and it is difficult to recognize the aesthetic defect, so it should be excluded from the defect repair.

Even if the temperature changes by season are less than 0.3m high due to the characteristics of the Republic of Korea, it is possible to reduce the inner strength of the structural body as the steel spreads caused by the infiltration of rainwater, etc. In terms of waterproof quality, repair is required, and it may hinder the function and safety of the structure, such as the need to repair in terms of waterproof quality. Even if the concrete outer wall is exposed or is not exposed, it is necessary to repair it as it is not good in itself, as it is not good. Even if material characteristics of concrete are considered, there is a variety of measures to minimize and control cracks in the whole process, such as mixing, construction, double production, and beams, and even if this part can occur between construction and construction, it is not acceptable to accept the Defendants’ assertion that it is necessary to reduce the cracks in the process of construction by building rupture from the rupture level to the rupture level to the rupture level to the rupture level to the rupture level to the rupture.

(B) Claim as to the appraisal item of the section of exclusive ownership

The defendants asserted as follows with regard to the part that the appraiser Park ○○ was found to be defective, so it is recognized as stated in the "each judgment" item.

【Judgment Table 1 on Defendant’s argument】

A person shall be appointed.

A person shall be appointed.

(C) Non-execution / Oral Construction 2) Claim as to appraisal items of common areas

[Judgment Table 2] of the Defendant’s argument

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

(D) argument on the issue of appraisal items

[Judgment Table 3]

A person shall be appointed.

A person shall be appointed.

(e) The assertion on the addition of "in addition and fact inquiry" in the verification items.

【Judgment of the Defendant’s argument 4】

A person shall be appointed.

A person shall be appointed.

(f) As to the assertion of excessive profit

In light of the current practices of the construction industry, the defendants asserts that the appraiser's application of the profit rate to 15% should be calculated as 10% unfairly in calculating the cost of repairing the defects in this case.

Article 21, which is a provision on the preparation of the estimated price by cost calculation in Chapter 2 of the standards for establishing the rule on accounting of re-major accounts, provides that "the profits shall mean the profits from the construction cost, which shall not exceed 15% of the total amount of the construction cost, labor cost, expenses, and general management expenses, and the profits shall not be appropriated in excess of 15% of the total amount." Unlike the general construction work, the repair work of apartment houses shall not continuously carry out the repair work, unlike the general construction work, in light of the difficulties in the repair work by avoiding various facilities, etc. already constructed, the above 15% profit ratio is excessively unfair or excessive. Thus, this part of the defendants' assertion is not acceptable.

B. Determination on the amount of defect repair expenses

Therefore, in order to repair the above defects, the sum of KRW 750,912,410 for the section for common use as stated in the defect repair cost list, and the sum of KRW 147,998,921 for the section for exclusive use, as stated in the defect repair cost list. [The sum of KRW 147,98,921 for the section for exclusive use]

A person shall be appointed.

3. Determination as to the claim against Defendant ○○ Housing, the occurrence of damages liability

According to the facts acknowledged above, Defendant ○○ Housing was divided for the purpose of carrying out a housing project from 00 companies that newly built the apartment of this case and sold the apartment of this case, and is liable to compensate the Plaintiff for damages in lieu of the defect repair from the sectional owners of the apartment of this case under Article 9(1) of the Aggregate Buildings Act and Articles 667 through 671 of the Civil Act to the extent of the claim that the Plaintiff transferred.

(b) Scope of damages;

(1) Of the damage claims in lieu of the defect repair of the apartment in this case, the section for exclusive use belongs to each sectional owner, and the section for common use belongs to each sectional owner in accordance with the ratio of the area of the section for exclusive use as a separate claim

The repair cost is 147,98,921 won as the main part of the previous claim transfer household, and 750,912,410 won as the main part of the common area, and the repair cost is 739,198,176 won (=750,912,410 won, 98.44% as the main part of the previous claim transfer household, and less than KRW 750,912,410, and less than KRW 98.44% as the main part).

Therefore, the claim for damages that the plaintiff's repair of defects is the sum of KRW 887,197,097 (=147,998,921 won +739,198,176).

(2) As to this, the Defendants asserted that the Plaintiff received damages claim in lieu of defect repair from the sectional owners, No. 00, No. 00, No. 00, and No. 00, and No. 00, and No. 1, 00, are different between the owners and the persons preparing an agreement on the assignment of claims, and since no identification card is attached to the agreement on the assignment of claims, the Plaintiff cannot be deemed to have received damages claim in lieu of defect repair from the sectional

However, if a sectional owner transferred an apartment to a third party after the claim for damages was transferred at the time of the sectional ownership of the apartment, the right to pay for defects at the time of the transfer to the third party shall be deemed to have been excluded from the object of transfer, and the subsequent transferee shall not have the right to pay for the warranty of defects (see Supreme Court Decision 2009Da9539, May 28, 2009). According to each of the evidence No. 2-1, No. 2-1, No. 2, and 3, according to each of the evidence No. 1, No. 00, No. 00-dong No. 1, No. 100666, Nov. 6, 2009, which was the sectional owner at the time of the transfer of the damage claim to the plaintiff on April 24, 2009, since the transfer of the damage claim to the third party is valid without any new procedure.

In addition, in the case of ○○○○ Dong-dong ○○○○ does not have an identification card attached to the agreement on the assignment of claims, but since ○○○ entered his name in the column of the assignment of claims, the validity of the assignment of claims is no problem. Moreover, in light of the Plaintiff’s status and the circumstances surrounding the assignment of claims, the said assignment of claims is valid, since it is not necessarily necessary to prove the transfer of claims.

Therefore, this part of the defendants' assertion is without merit.

C. Limitation on liability

However, in light of the following circumstances: (a) ○○○ Co., Ltd. conducted several repairs at the Plaintiff’s request; (b) around five years after the date of approval for the use of the instant apartment from October 12, 2004 to the date of the appraisal of the instant defect; (c) there may occur natural aging phenomenon in the instant apartment; (d) there is a very difficult part to strictly distinguish the parts caused by the error in the construction of OO and the parts caused by the deterioration naturally occurring from the defect; and (e) there is no probability that the defect has been expanded due to the error in the management of the sectional owners of the instant apartment; and (e) the amount of damages that Defendant 00’s housing should compensate the Plaintiff pursuant to the principle of fairness or the principle of good faith.

Of the amounts recognized in paragraph (a) above, 487,987,955 won [=134,191,242 won + (359,403,407 won x 98.44%) of the repair cost for the defects prior to approval for use + (i) 39,209,142 won (=887,197,097, 487,955 won) after approval for use, with the exception of the part which was less than original (i) it is reasonable to limit the repair cost for the defects to 70%).

D. Sub-committee

Therefore, Defendant ○○ Housing is obligated to pay to the Plaintiff KRW 767,434,354 (=487,985 won + 279,446,399 won + 709,446,399 won (= KRW 399,209, 142 won x 70% x less than won) and 110,000,000 of the amount following the day following the day on which the copy of the complaint of this case was served, with KRW 657,434,354, which is the day following the day on which the copy of the application for correction of the purport of this case and the cause of the claim of this case was served, to the Plaintiff at the rate of 5% per annum from the day following the day following the day on which the application for correction of the cause of the claim of this case was served until February 16, 201, which is the day after the issuance of each Defendant’s housing until February 9, 2012>

4. Determination as to the claim against Defendant ○○

According to the above facts of recognition, Defendant ○○ is obligated to pay the warranty bond to the Plaintiff, the secured creditor, within the scope of each guaranteed amount, with respect to the defects arising within each warranty period after the date of approval for use of the apartment in this case.

B. Scope of warranty liability

In accordance with the above principles of equity or the principle of good faith, Defendant 0○ Housing limited the amount of damages to be compensated for the Plaintiff by 70%. Since the instant guarantee agreement is in the form of a guarantee agreement due to its nature, the repair cost shall be borne by Defendant 00 within the smaller limit of the amount between the amount reduced in the above ratio and the amount guaranteed by Defendant 00 in the instant guarantee agreement. Accordingly, Defendant 00 under each of the instant guarantee agreements is the total amount of KRW 282,254,327 as follows.

A person shall be appointed.

C. Sub-committee

Therefore, with respect to Defendant OO’s housing and KRW 282,254,327 among the amount stated in Section 3-D., and KRW 110,00,000 among them, DefendantO is obligated to pay damages for delay at each rate of 20% per annum as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from March 31, 2009, the day following the delivery date of a copy of the complaint of this case, and the remainder of KRW 172,254,327 from March 16, 2011, which is the day following the delivery date of a copy of the application for correction of the claim of this case and the cause of the claim, which is deemed reasonable for each Defendant OO to dispute the existence and scope of the obligation.

5. Conclusion

Therefore, the plaintiff's claim against the defendants is justified within the scope of the above recognition, and the remaining claims are dismissed as they are without merit. It is so decided as per Disposition.

Judge Park Jong-chul

Freeboard of pagogy

Judges Lee J-young

1) There is no relationship between natural aging phenomenon and mistake in the use and management of the apartment in the instant apartment.

shall not limit liability.