2012 Gohap3494 Warranty bond, etc.

A Meeting for Representatives of Apartment Residents

Chairman B of the Representative

Law Firm Macro, Attorney Kim Doo

1. C Stock Company:

D Representative Director D

[Defendant-Appellee] Plaintiff 1 et al.

2. E stock companies:

Representative Director F

3. G stock company.

H Representative Director H

Defendant 2 and 3 Law Firm Chungcheong, Attorney Choi Jong-young, Counsel for the defendant-appellant-appellee)

November 27, 2014

December 24, 2014

1. Defendant C Co., Ltd shall pay to the Plaintiff the amount of KRW 2,192,53,561 and KRW 101,00,000 among them, the amount of KRW 2,00,561 per annum from June 15, 2012, KRW 2,091, KRW 53,561 per annum from April 8, 2014 to December 24, 2014, and KRW 20 per annum from the next day to the date of full payment.

2. Defendant E Co., Ltd and G Co., Ltd shall pay to each of the Plaintiff 741,608,254 won and 101,000,000 won among them, 5% per annum from June 16, 2012 to December 24, 2014, and 20% per annum from April 5, 2014 to December 24, 2014, respectively.

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

4. Of the costs of lawsuit, 20% of the portion arising between the Plaintiff and Defendant C Co., Ltd. shall be borne by the Plaintiff, the remainder by the said Defendant, respectively, and 40% of the portion arising between the Plaintiff, Defendant E Co., Ltd. and G Co., Ltd.

5. The above paragraphs 1 and 2 can be provisionally executed.

1. Defendant C Co., Ltd and E Co., Ltd shall jointly and severally pay to the Plaintiff 3,728,414,324 won and 101,00,000 won among them, 3,627,414,324 won from the day following the delivery of a copy of the complaint of this case, and 5% per annum from the day following the delivery of a correction of the claim of this case and a supplementary statement of cause for correction of the claim of this case until the day of the pronouncement of each judgment of this case, and 20% per annum from the day following the day

2. As to KRW 1,916,958,519 out of the amount stated in paragraph (1) and KRW 101,00,000 among them, Defendant G Co., Ltd. shall, jointly with the remaining Defendants, pay to the Plaintiff the amount calculated by serving the duplicate of the complaint of this case; as to KRW 1,815,958,519, the amount of KRW 5% per annum from the day following the day of serving the notice of correction and supplementary statement of the purport of this case to the day of full payment; and as to KRW 1,815,958,519

1. Facts of recognition;

A. The status of the parties and the conclusion of the warranty insurance contract

1) The Plaintiff is an autonomous management organization composed of occupants to manage H apartment units located in the Hanam-gun, Hanam-gun (hereinafter referred to as the “instant apartment units”), and Defendant C Co., Ltd. (hereinafter referred to as the “Defendant C”) is a project proprietor who constructed and sold the instant apartment units, and Defendant E Co., Ltd. (hereinafter referred to as the “Defendant E”) determined that the warranty period for the construction of the instant apartment units is based on the relevant laws and regulations at the time of approval for use as a company that was executed by the Defendant C under a contract with the construction of the instant apartment units.

2) As to the apartment of this case with Defendant G Co., Ltd. (hereinafter referred to as “Defendant G”), Defendant E entered into each of the respective warranty insurance contracts (hereinafter referred to as “each of the instant warranty insurance contracts”) as indicated in the table below where the policyholder as Defendant E and the insured are the Defendant E and the insured, and thereafter the insured was changed from Haan-gun to the Plaintiff.

A person shall be appointed.

A person shall be appointed.

3) Each guarantee insurance contract of this case provides that Defendant E, the debtor, received a completion inspection on the construction contract and thereby, compensate for the loss suffered by the insured by failing to comply with the contract even if he/she received a claim for repair of the defect that occurred within the warranty period, and the statute of limitations of the insurance claim of this case provides for two years.

B. Approval for use and defects of the apartment of this case

1) The apartment of this case was approved for use on September 30, 2006. Defendant E did not construct the apartment of this case according to the design drawing, or modified the construction differently from the defective construction or design drawing.

2) At least from around 2008, the Plaintiff received defects from the occupant generation, and requested the defect diagnosis company to conduct an overall defect diagnosis, from around September 2008, and demanded the repair of the defect. On June 9, 2010 in the process of consultation on the defect repair, the Plaintiff also received answers from Defendant E to the purport that some of the defects for each item can be expropriated and cannot be partially expropriated. In particular, on August 12, 2010, the Plaintiff confirmed the quantity and consulted specifically with regard to the defect in the landscape trees. The instant apartment has a defect in construction, such as the overall description of the item for each item for each item for the repair, and the construction cost equivalent to the construction cost stated in the said item for each item for each item for each item for each item for each item for each item for each item of the repair. The instant apartment building has a defect in construction as stated in the comprehensive description for each item for each item for the repair of the defect is required to be arranged as follows

A person shall be appointed.

C. Assignment, etc. of damage claim

1) On June 8, 2012, the Plaintiff acquired the damage claim in lieu of defect repair owned by the owner of 1742 household units among the 1,794 apartment units of this case (hereinafter referred to as the "transfer household of this case", and the remaining household; hereinafter referred to as the "untransfer household") against the Defendant C, filed the instant lawsuit on June 8, 2012 with the delegation of the authority to notify the assignment of the claim, and notified the said Defendant of the fact of the assignment of each claim by the delivery of the copy of the complaint. Accordingly, on June 19, 2012, Defendant E notified the Plaintiff of the suspension of the disposal of defects by the filing of the lawsuit, and reached June 20, 2012.

2) The ratio of the entire area of the instant apartment to the total area of the entire area of the instant apartment is 97.102%, and the cost of repairing the defects of the portion of exclusive ownership of the non-transfer household, out of the defect repair cost, is 3,872,570 won.

3) Until June 8, 2012, Defendant C filed the instant lawsuit, which claimed the above repair of defects or claimed compensation for damages equivalent thereto from Defendant E.

[Ground of recognition] Facts without dispute, obvious facts in record, Gap evidence 2-1 through 6, Gap evidence 3, 6, 8, Gap evidence 7-1 through 3, Eul evidence 10-1 and 2, the result of the appraisal of the appraiser's paths, the result of each request for supplementary appraisal of the course of this court's course for the whole pleadings

2. Determination as to the existence and scope of defects

As a result of the appraisal of appraiser's paths, each of the results of the request for complementary appraisal of the roads of this Court shall be determined as follows:

A. Judgment on the plaintiff's assertion

1) Claim that the entire design needs to be maintained after the rupture repair

The plaintiff asserts the cost of KRW 544,093,306 on the premise that the entire design is necessary in relation to the remuneration for the heating part among defects that occurred in the apartment of this case.

However, the partial design area is only 5.43% of the total size of the outer wall of the apartment of this case, defects caused by the crack of concrete building outer wall are normal defect repair method, and the seal construction work, such as the outer wall of the apartment of this case, is an appropriate defect repair method corresponding to the existing color if it conducts a partial design within the scope not impeding the aesthetic view in line with the painting of the section for common use by means of color mixture. However, the managing body of the apartment of this case shall accumulate the long-term repair appropriations necessary for the replacement and repair of main facilities of the apartment in accordance with the long-term repair plan, and shall execute the full-scale painting of the building outer wall, internal ceiling, interior wall, interior wall, and stairs once every five years, respectively. In light of the fact that the apartment of this case has passed more than eight years from September 30, 2006, the approval date for use of the apartment of this case, the above assertion is not reasonable.

2) Public 113. Claim of defects concerning items that occur under item (g) in the complex;

The plaintiff asserts, based on the result of appraisal, the above item's defect and its repair cost of KRW 343,592,005. Thus, it can be recognized as a defect in the case where the above item's defect and the landscape trees are not planted differently from the design drawing, and it does not fall short of the nature of the contract or the height item's defect liability period due to the construction defect occurs within 2 years.

However, according to the appraiser's roads, since it was investigated at the time more than six years have elapsed from the approval for use, it is impossible to distinguish the aesthetic and solid trees from the time of the occurrence of the high item (g) and the cause of the death cannot be determined, and it is difficult to recognize that the quantity of the landscaped trees verified by the appraiser as a defect is equal to the design drawings and as a defect without any further classification. It is difficult to recognize that all the quantity of the landscaped trees identified by the appraiser's defect is an aesthetic or solid item (g) generated within 2 years, and when based on the results of the above appraisal and evidence No. 10-1 and No. 10-2 and the above appraisal, the plaintiff and the defendant E are more likely to have identified as the defect at the time of appraisal than the number of the aesthetic or dead trees identified at the time of consultation.

However, even if the plaintiff and defendant E cannot recognize defects of landscape trees as a result of appraisal, it is reasonable to consider that the number of test items verified by each other from September 12, 2010 after consultation from around two years after the date of approval for use to be referred to as item (g) occurred within two years from the date of approval for use due to construction defects, and that the specific result of calculating the repair cost by applying the method of calculating the repair cost in the above appraisal is the same as the total statement for each item and the corresponding part of item (g) calculation data for each item in the attached Table (unafluencies portion is not recognized as defects because it is difficult to specify the quantity, etc. only with the above negotiation data).

Therefore, we cannot accept the Plaintiff’s assertion about damages in excess of this and equivalent to the cost of repair. On the other hand, we should consider in the limitation of the amount of damages that the possibility that some item (g) can not be excluded due to a mistake in the use and management of the Plaintiff or the instant apartment residents, which is not an error in the construction.

3) On 141. Public use, each of the PIT strata heat and water leakages, public use 148. The crack and water leakages of the underground parking lot, public use 151. The allegation of defects in each item of supplementary facilities (electrics, pumps, water tanks) floor cracks.

With respect to the defects in each of the above items, the Plaintiff sought a total of 58,076,363 won on the premise that all parts of less than 0.3 meters in heat are repaired by blue-type construction methods. However, in the case of cracks generated by non-structureless concrete such as the part where the said defect occurred, it is also possible and appropriate to repair less than 0.3 meters in the case of less than 0.3 meters in the form of surface treatment method required less than 0.3 meters in the case of cracks less than 0.3 meters in the form of blue-type construction method. Therefore, on the premise that these parts are repaired by the surface treatment method, the Plaintiff recognizes the total of 50,798,106 won in the form of

4) Additional diversion; 2. Verification of the thickness of the bathing rooms, floors, and walls of section for exclusive use, and addition; 6. Claim on each item to verify the condition of the termination of the floor of section for exclusive use;

The plaintiff asserts that the parts falling under each of the above items were constructed differently from the design drawings, and in fact, water leakage occurred due to lack of liquid waterproof thickness between the floor of the bathing room and the wall, and noise between floors exceeding the permissible level due to the lack of thickness of the floor finishing of the section for exclusive use, all of which constitute defects, and accordingly, the plaintiff asserts that compensation for damages amounting to KRW 380,256,739, the difference in the construction of the liquid waterproof part, and KRW 135,042,434, the difference in the construction of the floor finishing part. According to the appraisal result, the design drawing is written in the design drawing with the thickness of 12 meters from the wall and floor 30 meters from the wall, but the wall is constructed with 3 meters from the result of the investigation by one household, and in the case of the floor string and the string concrete, the thickness of the two design drawing is 70 meters, but it is recognized that the thickness of construction is 45m thickness of the two.

However, it is difficult to apply the results of the investigation by one household to the entire household, as it appears that all liquid waterproof construction and floor strings and construction of pond concrete consisting of field construction rather than specifications, not field construction, and that the thickness is not fixed. Since only one household is conducted through consultation with the plaintiff, it is difficult to recognize that the above defects exist in all households or the difference in construction is the same as the above. This is also true even if the above defects are added to Gap evidence No. 13, Gap evidence No. 12-1, and Gap evidence No. 21.

Ultimately, the plaintiff's above assertion is without merit.

B. Determination as to Defendant E and G’s assertion

1) The assertion that the defect was not proven within the warranty period

With respect to the first or third-year defect of the apartment of this case, Defendant E and G asserted that the above defect did not bear any liability because it did not prove that it occurred within the warranty liability period prescribed by the Housing Act and its Enforcement Decree.

As for the defects stipulated in Article 46 of the Housing Act, only when the defects have occurred within the warranty period prescribed by the Enforcement Decree of the same Act, the damages in lieu of the defect repair may be claimed. In principle, the plaintiff must prove that the first or third-year defect of the apartment of this case, which corresponds to the defects stipulated in Article 46 of the Housing Act, has occurred within the warranty period.

However, in addition to the fact that the Plaintiff received defects from the moving-in generation in at least from around 2008, and requested the defect diagnosis business entity to conduct an overall defect diagnosis and from around September 2008, it is difficult to expect that the Plaintiff or the sectional owner of the instant apartment can prove the time of the occurrence by specifying the individual defects existing in the instant apartment in daily, and it is difficult to expect that the Plaintiff or the sectional owner of the instant apartment can prove the time of the occurrence. However, in addition to the fact that in the case of the instant apartment that has reached 1,750 households, if the sectional owner or the council of occupants' representatives would have reached the process of recognizing the occurrence of defects and gathering opinions, it is difficult to accept the fact that the Plaintiff had already received defects from the moving-out generation from September 30, 2007, since the defect warranty period of the first-year defect warranty period of the instant apartment from the time of the defect warranty period of the first year defect to the date of the overall defect diagnosis, the Defendants’ assertion that occurred within the defect warranty period of the instant apartment can not be accepted.

However, as above, we decide to consider some unclear points at the time of occurrence of defects in the limitation of the amount of damages.

2) Claim on permissible rupture breadth

Defendant E and G asserts that it is unreasonable to consider the heat of less than 0,300m in width as defect in a place that is not the one in which the appraiser can enjoy or is not the one in which the iron bars are distributed.

However, even if the temperature change by season is less than the permissible rupture for securing the durability due to the characteristics of Korea, it can be reduced in the inner strength of the structure due to the corrosion of rainwater and spreading ruptures due to the infiltration of rainwater, etc. In terms of waterproof, the function and safety of structure such as the need to repair in terms of waterproof, etc., such as the need to repair, and even if it is not exposed to concrete outer walls or even if it is not so, it is necessary to repair because rupture is not good in itself, and even if the material characteristics of concrete are considered, there is a variety of measures to minimize and control rupture generated in the whole process, such as materials, mixing, construction, solar, and tupture, and so on. Even if this part is constructed differently, it is inevitable to view that rupture is less than the permissible rupture of concrete from the design stage to minimize the rupture generated by the environment, and to exclude the heat generated by the rupture of concrete from the construction process.

However, in the case of cracks less than 0.3m, such circumstances should be considered in the limitation of the amount of damages, as they may not cause particular obstacles to safety aspects, function features, and aesthetic sense, depending on specific circumstances, such as location.

3) The assertion that the contractor is not responsible for the design defect.

In addition, Defendant E and G were judged to be defective on the ground that some of the these items were not constructed in accordance with the standard specifications even though they were constructed in accordance with the design drawings as a result of appraisal. Defendant E and Defendant E, as the contractor of the construction project, did not claim that they are not responsible for the said design defects, since they were built in accordance with the design drawings corresponding to the Defendant C’s order as the contractor of the construction project.

(Specifically, item is not specified).

However, the appraiser considers the above-mentioned defects as defects in construction, not design defects.

In the case of each item of construction of the apartment-to-be floor Doll, the apartment-to-pto-pto-pto-pto-pto-pto-pto-pto-pto-pto-pto-pto-pto-pto-pto-pto-pto-pto-pto-pto-pto-pto-pto-pto-pto-pto-pto-pto-p to-p to-

4) Defect in each item

The defendant does not accept all of the defects of each item in the following table for the same reasons as the summary of the note, as it is seen in the judgment.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

3. Determination as to the claim against Defendant C

A. According to the facts acknowledged in the occurrence of liability for damages, Defendant C, the business entity that constructed and sold the apartment of this case, was the Plaintiff who acquired the damage claim in lieu of defect repair from the debt transfer deposit of this case, and is liable to compensate the Plaintiff for damages in lieu of defect repair of the apartment of this case recognized within the extent of the claim that the Plaintiff acquired.

B. Scope of liability for damages

Therefore, regarding the scope of liability for damages, health expenses, damage liability in lieu of defect repair belongs to the sectional owners of the apartment of this case, and the common areas among them belong to each sectional owner according to the ratio of the area of the section for exclusive use. As such, 824,483,228 won (i.e., the total cost of defect repair 828,35,798 won - the portion for exclusive use - the portion for exclusive use of which 2,307,707,574 won (total cost of defect repair 2,376,580,889 won) for common use and 2,307,707,574 won (total cost of defect repair 2,376,580,889 won) for common use and 3,132,190,802 won (the same shall apply hereinafter) for the portion for exclusive use.

However, it is practically difficult to strictly distinguish the part due to the construction error and the part due to the natural aging phenomenon from among the defects that occurred in the apartment complex after the lapse of six years from the date of the approval for use of the apartment complex in this case from the date of the appraisal of the defects in this case, and to strictly distinguish the part due to the construction error from among the defects in the apartment complex. It is not possible to exclude the possibility that the defects in the apartment in this case have been expanded due to the mistake in the use and management of the apartment in this case. As to the parts recognized as the defects in Article 1-A(2) of the above, the circumstances on the causes of the apartment item (g) as seen in Article 1-B, and Article 2-2(b) of the above circumstances revealed in the argument in this case, such as the uncertainty of the time of the occurrence of the defects in this case, the heat less than 0.3 meters, and the situation concerning the individual items, etc.,

D. Sub-determination

Therefore, Defendant C is obligated to pay to the Plaintiff KRW 2,192,53,561 (=3,132,190,802 x 70%) and KRW 101,00,00,00 among them as damages in lieu of defect repair (i.e., KRW 3,132,190,802 x 70%) from June 15, 2012, the following day after the delivery of a copy of the complaint of this case to the above Defendant, for KRW 2,091,53,561, which is the day after the delivery of a correction and supplementary statement of the purport of this case to the above Defendant, from April 8, 2014 to December 24, 2014, KRW 5% per annum as stipulated in the Civil Act, and damages for delay calculated by 20% per annum as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment.

4. Determination as to the claim against Defendant E

A. Determination on the main safety defense

In regard to this part of the claim that the Plaintiff sought damages in lieu of defect repair by taking the damage claim against Defendant C as the preserved claim under the above Paragraph (3) of this Article on behalf of the above Defendant on behalf of the said Defendant, Defendant E did not prove that Defendant C was insolvent, and thus, this part of the claim is unlawful.

However, according to the fact-finding results of this court's fact-finding on Kim Jong-si and Kim Jong-si, it is recognized that Defendant C did not have the payment details of corporate tax since March 2009 and did not have the payment details of property tax since October 2010. In addition, in addition to the fact that the circumstances concerning the business and the property currently in existence are not revealed, it is reasonable that Defendant C did not have the ability to pay damages liability to the Plaintiff as seen in paragraph (3). Thus, the above defense by Defendant E is without merit.

B. Determination on the cause of the claim

1) As seen in paragraph (3) against Defendant C, the Plaintiff has a damage claim in lieu of the defect repair of the instant apartment, and Defendant C, as a contractor for the new construction of the instant apartment, is liable to compensate for damages in lieu of the repair of the defects arising in connection with the construction work. In addition, Defendant C does not exercise the above damage claim against the Plaintiff as it is in the absence of sufficient capacity to repay the said claim against the Plaintiff, barring any other special circumstances, Defendant C is liable to compensate the Plaintiff, who subrogated to Defendant C, for damages in lieu of the defect repair of the instant apartment within the scope of the preservation claim.

2) On the other hand, Defendant E asserts the amount of damages to be compensated by Defendant E including the value-added tax required for defect repair as the amount of damages in lieu of defect repair, such as the claim against Defendant C.

However, in cases where the defect repair is required due to the contractor's defect in the contract construction work, and the contractor is the taxpayer under the Value-Added Tax Act and the defect repair falls under the supply of the service that was used or is to be used for his own business, the value-added tax required for the defect repair constitutes the input tax amount under the Value-Added Tax Act. Therefore, the above value-added tax may be deducted or refundable from his own output tax amount. In such cases, the contractor cannot claim damages equivalent to the above value-added tax against the beneficiary, unless there are other special circumstances (see Supreme Court Decision 92Da47328, Jul. 27, 1993).

In this case, Defendant C’s subrogation as a taxpayer under the Value-Added Tax Act cannot claim damages equivalent to the value-added tax required for repairing defects against Defendant C. Thus, the amount of damages to be paid by Defendant E is recognized, and the amount of damages to be paid by Defendant E is KRW 2,847,446,183 (the sum of the value-added tax plus 10% of the value-added tax is KRW 3,132,132,190,802) calculated by subtracting the value-added tax amount from the total of the cost of repairing defects with respect to the assignment of claims of this case as seen in Article 3-2,847,446,183 (the sum of the cost of adding value-added tax to the supply price is KRW 3,132,190,802).

3) Therefore, Defendant E is liable to pay to the Plaintiff KRW 2,847,446,183 as damages in lieu of defect repair and damages incurred therefrom, barring any other special circumstances. Determination on Defendant E’s defense, etc.

1) Defendant E asserts that all defects arising prior to the lapse of five years from the statute of limitations for commercial matters, which were retroactively calculated from June 15, 2012, delivered to Defendant E the duplicate of the instant complaint, have expired.

2) The provisions of the extinctive prescription under Article 64 of the Commercial Act shall apply to the right to claim damages of a contractor for work, in light of the content, nature, and purport of the right, where the provision of the extinctive prescription of claims under Article 162(1) of the Civil Act or the contract therefor constitutes commercial activities. As asserted by the Plaintiff, the application of each of the above extinctive prescription provisions may not be deemed excluded due to the exclusion period under Article 28(1) of the Framework Act on the Construction Industry or Article 9 of the Act on the Ownership and Management of Condominium Buildings and the proviso of Article 671(1) of the Civil Act (see, e.g., Supreme Court Decision 2011Da56491, Nov. 15, 2012). In this case, the damage claim in lieu of the defect repair contract of Defendant C, which is a commercial activity, is subject to five-year commercial prescription, and the period of extinctive prescription in lieu of the defect repair of such aggregate buildings, belongs to the obligor.

3) In light of the foregoing legal principles, in the case of the defect that occurred before the approval for use among the defects in the apartment of this case, the starting date of the extinctive prescription of the damage claim in lieu of the repair will be September 29, 2006, which was the day before the approval date of use, and as long as the lawsuit of this case was filed on June 8, 2012, which was five years after the filing of the lawsuit of this case, the extinctive prescription

As to this, the Plaintiff asserted that Defendant E accepted the above liability for damages in writing on June 9, 2010 and gave up the prescription benefits to the Plaintiff who demanded the repair of defects in subrogation of Defendant C. As such, the Plaintiff sent a document sent to the Plaintiff on June 9, 2010 to the purport that some of the items can be accepted and cannot be partially accepted, as stated in the facts of recognition.

However, as a ground for the interruption of the extinctive prescription, the approval of an obligation is established by expressing that the obligor, who is the party to receive the benefit of prescription, is aware of the existence of the right to the obligor or his/her agent, who is the party to receive the benefit of prescription. It is doubtful whether it can be interpreted as the approval of the obligation because considerable of the items that were prepared in the process of consultation on the repair of defects and the answer that could not be accepted even in light of the contents of the above, can not be seen as recognizing the liability as to the whole of the defects recognized in the instant case. Furthermore, the Plaintiff appears to have requested the repair of defects directly in the position of the council of occupants' representatives under Article 46(1) of the Housing Act, and there is no evidence to deem that there was a demand for the repair of defects in subrogation of the Defendant C (this also refers to before the Plaintiff acquires the damage claim from the assignee of the instant case). Therefore, it is difficult to view the foregoing document as the name of the intent against the Defendant who is the party to receive the benefit of prescription. Therefore, there is no reason for the Plaintiff’s

In other words, the Plaintiff responded to the purport that Defendant E accepts part of the demand for repair of defects as above, and the Plaintiff has been conducting negotiations on the repair of defects in good faith and sincerity. The Plaintiff’s assertion of extinctive prescription constitutes an abuse of rights. However, it is difficult to view that Defendant E granted to the sectional owners of the apartment of this case or the Plaintiff, etc., the trust that Defendant E would not claim extinctive prescription as to the liability for damages as recognized in the above paragraph (b) is difficult solely on the ground that the Plaintiff asserted. Therefore,

4) However, in the case of the primary defect and the subsequent defect, unless there is specific assertion or proof by Defendant E as to the point of time of occurrence of the defect, the expiration date of each defect liability period shall be deemed to be the initial date of the extinctive prescription. Since, on September 29, 2007, before the lapse of five years from September 29, 2007, the expiration date of the extinctive prescription period for the primary defect, the lawsuit of this case subrogated by the Plaintiff for the Defendant C was filed and the prescription was interrupted, it shall be deemed that the extinctive prescription has not been completed as to the damages claim in lieu of the repair of the primary defect and the subsequent defect. Accordingly, Defendant E’s assertion on this part is without merit.

5) Accordingly, the part concerning the defects before approval for use among the 2,847,446,183 Won 1,788,005,820 (the aggregate of the expenses for repairing defects stated in the present defect repair expense table in the recognized facts 1,966,806,402) was excluded from the value-added tax required for repairing defects. As long as the Plaintiff did not specify the portion of the amount concerning the non-transfer household of the defect repair expenses by the time of occurrence of the defect, and the amount is not much significant, the time of occurrence of the defect concerning the non-transfer household of the claim shall be deemed to be after approval for use is all deemed to have occurred. Accordingly, the above 1,78,05,820 won, which has become extinct by the prescription, shall be deemed to have become the part concerning the assignment household of this case. As such, it does not affect the calculation of the amount of damages by Defendant E, 105,4036,820 won, which is calculated separately from the table.

(d) limitations on the amount of damages set forth in Section 3-C., taking into account these circumstances, Defendant E’s amount of damages shall also be limited to 70 per cent in accordance with the principle of fairness or good faith.

E. Sub-decision

Defendant E is obligated to pay to the Plaintiff KRW 741,608,254 as damages in lieu of defect repair (i.e., KRW 1,059,440,363 x KRW 70%) and to pay KRW 101,00,00 among them at the rate of 5% per annum as prescribed by the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, from June 16, 2012, the following day after the delivery of a copy of the complaint of this case to the above Defendant, to KRW 640,608,254, which is the day following the day when the correction and supplementary statement of the purport of this case was served on the above Defendant. From April 5, 2014 until December 24, 2014, which is each of the sentencing dates of this case, 5% per annum as prescribed by the Civil Act from the next day until the day of full payment.

5. Determination as to the claim against Defendant G

A. According to the facts of finding the cause of the claim, Defendant G is obligated to guarantee the obligation to repair the defects related to the apartment of this case, and the Plaintiff is obligated to pay the warranty bond equivalent to the cost of repairing the defects incurred in the apartment of this case within the insurance period, as stipulated in the guaranty insurance contract, within the scope of the guaranteed amount ( Defendant G guarantees the defects that occurred within the insurance period, and thus, the above Defendant’s assertion disputing that the liability is not limited to the circumstances where the insurance period for each defect of 1, 2, and

Each guarantee insurance contract of this case provides that the insurance period after the approval for use of the apartment of this case is the insurance period. As detailed in Section 4-C. 5, Defendant E’s repair costs for defects arising after the approval for use of the apartment of this case are recognized to be KRW 1,059,440,363, and this is within the insurance coverage amount stipulated in each guarantee insurance contract of this case. Thus, Defendant G is liable to pay to the Plaintiff the warranty bond of 1,059,440,363 won and damages for delay.

B. Determination on Defendant G’s defense

The above defendant asserts that the plaintiff's right to claim the warranty bond against the insurance claim has expired after two years of extinctive prescription.

However, as seen in the facts that the above bonds are insurance claims, the period of extinctive prescription is two years, as stated in the facts of recognition. However, the initial date of the extinctive prescription shall be the date of occurrence of the guarantee accident stipulated in each guarantee insurance contract of this case, and each guarantee insurance contract of this case shall be determined as "where the defendant received a request for the repair of defects that occurred within the warranty period after the completion inspection and the defendant received the request for the repair of defects that occurred within the warranty period, but fails to perform it under the contract".

However, Defendant G did not specifically claim the starting point of the extinctive prescription period. On the other hand, even if examining, the consultation on the repair of defects between the Plaintiff and Defendant E was conducted, and Defendant E notified the Plaintiff to the effect that only part of the defective items for which the Plaintiff demanded compensation can be accepted on June 9, 2010, was found in the facts of recognition. The guarantee accident of each of the instant respective guaranteed insurance contracts seems to have occurred on June 9, 2010, even if it was rapidly higher. Thus, as long as the instant lawsuit was filed on June 8, 2012, which was 2 years after the lapse of 2 years from the instant lawsuit, the aforementioned assertion is without merit.

(c) in Section 3-C., taking into account these circumstances, the amount of damages by Defendant G, which guarantees the repair obligation of Defendant E, shall also be limited to 70 per cent in accordance with the principle of equity or good faith;

D. Sub-determination

As to the Defendant E and each of the respective guaranteed insurance contracts of this case (i.e., KRW 741,608,254 (i.e., KRW 1,059,440,363 x KRW 70%) and KRW 101,00,00 among them, Defendant G has a duty to pay damages for delay calculated at a rate of 5% per annum as prescribed by the Civil Act from April 5, 2014, following the day when the delivery of a copy of the complaint of this case was served on the above Defendant, and from June 16, 2012, KRW 640,608,254, which is the day following the day when the written correction and supplement of the purport of this case was served on the above Defendant, from April 5, 2014 until December 24, 2014, and KRW 20% per annum as prescribed by the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings.

6. The relationship between the Defendants’ liabilities

The Plaintiff’s right to claim damages against Defendant C and the Plaintiff’s right to claim damages against Defendant E, which the Plaintiff seeks on behalf of the said Defendant, are separate rights, and Defendant G guarantees the obligation to repair the defects of Defendant E. As such, the Plaintiff’s assertion that the Defendants jointly and severally liable is not accepted, and only the overlapping relationship between Defendant E and Defendant G is recognized

7. Conclusion

The Plaintiff’s claim against the Defendants is accepted within the scope of each of the above recognition, and each of the remaining claims is dismissed without merit. It is so decided as per Disposition (Although Defendant C did not actively respond to the lawsuit since the responsibility for the defects in construction is ultimately borne by Defendant E, it is necessary to respond to the assertion that Defendant E would not be responsible for the defects arising from design defects at the date of the closing of argument in this case, Defendant E applied for the resumption of pleading on December 10, 2014, which is the date of the closing of argument. However, Defendant E had already asserted the above contents in the first reply submitted on July 17, 2012, and thus Defendant E had already asserted the above contents, it is impossible to accept the application for resumption of pleading as above after the closing of the oral argument in this case for more than two years, and it does not affect the conclusion even if considering the specific arguments in the written statement submitted by Defendant C).

The judges of the presiding judge and judges;

Judges Choi Ho-ok

Judges Kang Jin-jin