[1] The legal nature of the warranty liability period under Articles 670 and 671 of the Civil Act, which are applied mutatis mutandis by Article 9 of the former Act on the Ownership and Management of Aggregate Buildings (=the exclusion period)

[2] Whether the exclusion period of the right to claim damages in lieu of defect repairs can be deemed to have been observed in a case where a right to claim defect repairs is exercised within the exclusion period under Articles 670 and 671 of the Civil Act, which are applied mutatis mutandis by Article 9 of the former Act on the Ownership and Management of Aggregate Buildings (affirmative)

[3] Whether the council of occupants' representatives can be deemed to have exercised the right to repair defects on behalf of the sectional owners or through the council of occupants' representatives where the council of occupants' representatives requested the project owner to repair defects in its own or in the name of its management office

[4] The case holding that, in case where the council of occupants' representatives first filed a lawsuit seeking damages with the business entity on the premise that the council of occupants' representatives has a right to claim damages in lieu of the defect repair under Article 9 of the former Act on the Ownership and Management of Aggregate Buildings, and thereafter submitted a preparatory document to the court of first instance and the court of original instance that the said party claims the amount of takeover on the ground that the said right to claim damages was transferred to the sectional owners, since the act of the council of occupants' representatives brought a lawsuit or the act of demanding the defect repair against the business entity, it cannot be deemed as exercising his right to claim damages or the right to claim the defect repair on the ground that the act of the council of occupants' representatives asserted his/her right to claim damages or the act of demanding defect repair against the business entity

[5] Whether the provisions on defect repair period under the former Housing Construction Promotion Act affect the exclusion period of the duty to repair defects to the sectional owners under Article 9 of the former Act on the Ownership and Management of Aggregate Buildings (negative)

[1] Article 9 of the former Enforcement Decree of the Housing Act (amended by Act No. 6925 of Jul. 18, 2003), Articles 670 and 671 of the Civil Act / [2] Article 9 of the former Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 6925 of Jul. 18, 2003), Articles 670 and 671 of the Civil Act / [3] Article 9 of the former Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 6925 of Jul. 18, 2003), Article 671 of the Civil Act, Article 38 (14) of the former Enforcement Decree of the Housing Act (amended by Act No. 6925 of May 29, 2003) (see current Article 60 of the Housing Act), Article 160 of the former Enforcement Decree of the Housing Act (amended by Act No. 970 of May 16, 20196)

[1] Supreme Court Decision 2008Da86232 Decided May 28, 2009, Supreme Court Decision 2008Da88368 Decided January 14, 201 / [3] Supreme Court Decision 2009Da34405 Decided March 24, 201 (Gong201Sang, 809) / [5] Supreme Court Decision 2001Da24891 Decided January 27, 2004 (Gong2004Sang, 430) Supreme Court Decision 208Da16851 Decided December 9, 2010 (Gong201Sang, 855)

Ronam-ju apartment council of occupants' representatives (Attorneys Park Hong-hoon et al., Counsel for the plaintiff-appellant)

Korea Land and Housing Corporation (Attorney Cho Sung-sung, Counsel for defendant-appellant)

Gwangju High Court Decision 2008Na4093 decided September 25, 2009

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Judgment on the main claim

A. As to the first ground for appeal

The warranty period under Articles 670 and 671 of the Civil Act, which are applied mutatis mutandis by Article 9 of the former Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 6925, Jul. 18, 2003; hereinafter referred to as the "former Aggregate Buildings Act"), falls under the exclusion period, which is a judicial or non-judicial exercise period, and the proviso of Article 671 (1) of the Civil Act is applied to concrete structures such as the apartment of this case, and the warranty period is ten years after delivery (see Supreme Court Decisions 2008Da86232, May 28, 2009; 2008Da8368, Jan. 14, 2010, etc.).

In addition, since the right to demand a repair of defects under Article 9 of the former Act on the Ownership and Management of Aggregate Buildings is a right to demand a repair of defects, or to claim a compensation for damages in lieu thereof, the exclusion period of the right to claim a compensation for damages in lieu of the repair of defects under this Article may be deemed to have been observed even in cases where the right to claim a repair of defects is exercised simply within the exclusion period. However, in cases where the council of occupants' representatives claims a repair of defects to the project undertaker under the name of its own or its management office, unless there are special circumstances, it shall be deemed that the council of occupants' representatives exercises its right, barring special circumstances, and the council

According to the facts and records acknowledged by the court below, the defendant submitted a preparatory document to the court of first instance, which states that the defendant shall claim the acquisition amount against the defendant on the ground that the owner of the apartment of this case was transferred the above damage claim from the owner of the 1,354 households among the sectional owners of this case on June 21, 1996, and that the owner of the apartment of this case was transferred the above damage claim from the owner of the 64 households on September 4, 2008. The plaintiff, the council of occupants' representatives of the apartment of this case, originally filed the lawsuit of this case on May 26, 2003, on the premise that he had the right to claim damages in lieu of the defect repair under the former Aggregate Buildings Act. The plaintiff, the council of occupants' representatives of the apartment of this case, submitted a preparatory document to the court of first instance on the ground that he was transferred the above damage claim from the owner of the 1,354 households among the sectional owners of this case on the ground that he had been additionally transferred the above damage claim.

In light of the above legal principles, the plaintiff's act of filing the lawsuit in this case or demanding the repair of defects against the defendant on May 26, 2003 alleged his/her right. Thus, it cannot be deemed that the plaintiff exercised his/her right to claim damages or the right to claim the repair of defects on his/her behalf as the representative of sectional owners, or the plaintiff exercised his/her right in acting as the representative of the sectional owners. In this case, it is obvious that when the plaintiff submitted a preparatory document claiming the acquisition money of this case from the sectional owners on the ground that the above damage claim was transferred from the sectional owners, all of the time when the plaintiff submitted the preparatory document claiming the acquisition money of this case on the ground that the above damage claim was transferred from the sectional owners, the above right to claim damages has expired with the limitation period of 10 years from the date of delivery of the apartment of this case. In addition, considering the fact that the plaintiff

In the same purport, the court below's rejection of the plaintiff's main claim of this case is just, and there is no error of law such as misunderstanding of legal principles as to the exclusion period of the warranty right.

B. On the second ground for appeal

According to the reasoning of the judgment below and the records, it is evident that the plaintiff, as the main claim of this case, was transferred from the sectional owners of this case a claim for damages in lieu of defect repairs under Article 9 of the former Act on the Ownership and Management of Aggregate Buildings, and sought compensation for damages against the defendant, the construction company of this case. As recognized by the court below, the apartment of this case had undergone a pre-use inspection on June 21, 1996, before Article 6 of the Addenda to the amended Housing Act and the amended Act on the Ownership and Management of Aggregate Buildings Act were enforced. As such, the contents and scope of the warranty liability should be determined pursuant to Article 9 of the former Act and Articles 67 through 671 of the Civil Act as applied mutatis mutandis (see, e.g., Supreme Court Decisions 3Da10237, Apr. 5, 2010; 2008Da12439, Dec. 11, 2008).

Meanwhile, the former Housing Construction Promotion Act (amended by Act No. 6916, May 29, 2003; hereinafter the same shall apply) and the former Decree on Management of Multi-Family Housing (amended by Presidential Decree No. 18146, Nov. 29, 2003; hereinafter the same shall apply), etc. provide that the project owner may demand the tenant, the council of occupants' representatives or the management entity of multi-family housing to repair defects that have occurred within a certain period of time according to the contents of the construction and the type of defects. However, at an administrative level, the criteria for prompt repair of defects as a warranty bond are prescribed by the procedures, methods, and the period for repairing defects of multi-family housing are determined and the management entity or the council of occupants' representatives of multi-family housing that did not have any specific legal relationship with the project owner may demand the remuneration for defects that have occurred within the period of time prescribed by the above Act. Thus, it does not affect the exclusion period of the duty to repair the defects to sectional owners under Article 9 of the former Multi-Family Building Act (see, etc.).

Although the court below's explanation of this part of the ground for appeal is not appropriate, the conclusion of the court below's rejection of the plaintiff's claim is justifiable, and there is no error of law such as misunderstanding of legal principles as

C. On the third ground for appeal

The plaintiff's lawsuit of this case is the cause of the claim in lieu of the defect repair, and even if the claim for damages is substituted by the limitation period, which is the time limit for the exercise of rights other than a trial or a trial, the lawsuit of this case itself is not unlawful. Thus, the court below should dismiss the claim in question if the claim for damages of this case is extinguished, and it should not be dismissed as an unlawful lawsuit. Accordingly, the court below erred by rejecting the lawsuit of this case as to the main claim of this case.

However, as seen earlier, the primary claim in this case is bound to be dismissed, and only the plaintiff in this case where only the plaintiff appealed, the dismissal judgment against the plaintiff cannot be rendered (see Supreme Court Decision 96Da3852 delivered on October 11, 1996, etc.). Thus, the grounds of appeal asserting that the plaintiff should have dismissed the lawsuit by himself against the judgment of the court below which rejected the lawsuit cannot be accepted (see Supreme Court Decision 90Meu24021 delivered on December 7, 1990, etc.).

2. Determination on the conjunctive claim

The court of final appeal may investigate and determine only to the extent of filing an appeal based on the grounds of final appeal. The grounds of final appeal submitted by the Plaintiff are only stated in the grounds of final appeal as to the primary claim, and there is no indication in the grounds of final appeal as to the conjunctive claim, and this part is deemed not to have been filed. The grounds of final appeal as to it is not stated

3. Conclusion

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

Justices Lee Sang-hoon (Presiding Justice)