The council of occupants' representatives (Law Firm Cheong-tae, Attorneys Kim dilution et al., Counsel for the plaintiff-appellant)

Korea Housing Guarantee Co., Ltd. (Law Firm Hanro, Attorneys Southern-jin et al., Counsel for defendant-appellant)

August 22, 2012

Busan District Court Decision 2010Gahap10279 Decided February 9, 2012

1. The part against the defendant exceeding the amount cited below among the judgment of the court of first instance is revoked, and the plaintiff's claim corresponding to the cancellation part is dismissed.

The defendant shall pay to the plaintiff 1,510,195,176 won and 110,000,000 won among them, 5% per annum from June 15, 2010 to September 19, 2012, 5% per annum from the next day to the day of full payment, and 20% per annum from the next day to the day of full payment.

2. The defendant's remaining appeal is dismissed.

3. One fifth of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. Purport of claim

The defendant shall pay to the plaintiff 1,887,743,971 won and 110,000,000 won among them, and with respect to the remaining 1,777,743,971 won, 5% per annum from the day following the service of a written complaint to November 1, 2011 and 20% per annum from the day following the day of the delivery of a written complaint for correction of the claim and the cause of the claim, until the day of each judgment of the first instance and until the day of full payment.

2 Purport of appeal

The part against the defendant in the judgment of the court of first instance is revoked, and the plaintiff's claim corresponding to the above revocation is dismissed.

1. Quotation of judgment of the first instance;

The reasoning for the court's explanation concerning this case is as stated in the corresponding part of the first instance court's judgment, except for the first instance court's first instance judgment's second instance judgment's second instance judgment's second instance judgment's second instance judgment's second instance judgment's second instance judgment's second instance judgment's second instance judgment's second instance judgment's second instance judgment's 15 to 16, second instance judgment's second instance judgment's second instance judgment's second instance judgment's second instance judgment's second instance judgment's second instance judgment's second instance judgment's second instance

2. The addition;

With respect to the defect of the 5 to 10-year load-bearing structure

A) Defendant’s assertion

Since May 26, 2005, in the case of apartment houses approved for use after the enforcement of the amended Housing Act, it is not all defects arising from the load proof structure structure, but is recognized as warranty liability for the damages of 5 to 10 years for the defects that are likely to collapse or collapse due to such defects. It is not proven that the apartment is likely to collapse or collapse due to the defect in the defect warranty liability period of 5 to 10 years for the apartment of this case.

B) Determination

Article 46 of the Housing Act, Article 59 (1) [Attachment 7] of the Enforcement Decree of the Housing Act concerning the duty to repair defects, and Article 59 (1) [Attachment Table 7] of the Enforcement Decree of the Housing Act provides that when the relevant apartment house is determined to collapse or to collapse due to any defect in the portions of proof-stress structures of the apartment house, or when the relevant apartment house is determined to collapse or to collapse as a result of safety inspection, the relevant apartment house shall be liable for repairing and compensating for the damage caused by such defect within ten years (ten years for columns, load bearing walls, beams, floors, and roof, and five years). However, the purport of the provision is that the aforementioned provision is not to impose special aggravated liability in light of the risk and importance of the serious defect, such as the defect in the portions of proof-proof structures, and it is not to limit the liability to guarantee only for the same serious defect (see Supreme Court Decision 2007Da83908, Feb. 26, 2009).

11) On the tax base of value-added tax included in the calculation of repair costs

A) Defendant’s assertion

In calculating repair costs, the industrial accident insurance premium, health insurance premium, pension premium, retirement pension installment premium, etc. (hereinafter referred to as “industrial accident insurance premium, etc.”) in itself has the nature of quasi-tax and does not include value-added tax on the total amount of wages, which serve as the basis for calculating each of the above insurance premiums. Therefore, the amount of value-added tax on the industrial accident insurance premium, etc.

B) Determination

The cost of defect repair in this case is calculated as the amount of value-added tax by adding the general management cost and profit to the net construction cost including the above industrial accident insurance premium, etc. as the tax base. The total amount of net construction cost plus the general management cost and profit is included in the value-added tax standard because it falls under the price for the supply of defect repair service as the whole

12) As to the lapse of the defect liability period of the first to third year

A) Defendant’s assertion

There is no evidence to acknowledge that the defect not included in the Plaintiff’s official document, etc. among the defect warranty liability period of 1 to 3 years for which the Plaintiff claimed remuneration in this case had occurred within the period of liability, and thus, it should be excluded from the scope of defect warranty liability.

B) Determination

According to the evidence evidence No. 1-6 (Terms and Conditions for Repair of Defects), Article 7 (1) of the Guarantee Agreement between the defendant and the rehabilitation company provides that "The Guarantee Creditor shall prove the fact that the requested defect occurred in the construction of the facility subject to repair of defects and occurred within the period of liability for the repair of defects by type of work prescribed in the attached Tables 6 and 7 of the Enforcement Decree of the Housing Act," and Paragraph (2) of the same Article provides that "I will not bear the Guarantee Company for the defect that the Guarantee Creditor fails to prove the fact under paragraph (1)."

In full view of the purport of the whole evidence presented above, it can be acknowledged that the plaintiff continuously sent the request for repair of defects related to the defect in the year 1 through year 3 from July 31, 2006 to May 31, 2007, and the report of defect diagnosis, etc. to the rehabilitation company. Thus, it can be confirmed that each defect in the defect list in attached Form 1. can be confirmed within the defect warranty period, and therefore, the defendant's allegation in this part is without merit.

3. Parts to be dried;

The scope of guarantee liability.

Expenses incurred in repairing defects subject to the guarantee of the defendant's house guarantee shall be the expenses for repairing defects due to the defect in attached Form 1. 1.2, 2, 3, 5, and 10, excluding the expenses for repairing the defect before pre-use inspection and the expenses for repairing the defect before the pre-use inspection.

However, the apartment of this case can contribute to the expansion of defects due to natural aging phenomenon that flows about five years from the date of usage inspection until the date of appraisal of defects actually conducted; it is not easy for the rehabilitation company to clearly distinguish the parts caused by error in construction and due to error in management and deterioration from the site of the apartment of this case before the filing of the lawsuit of this case; according to the standard for the formulation of the long-term repair plan of Article 30 [Attachment Table 5] of the Enforcement Rule of the Housing Act, the outer wall of the building of this case must be completely built every five years; the outer wall of this case needs to be built every five years after the completion of the apartment of this case; thus, the plaintiff's maintenance cost is reduced; there is academic opinion that does not recognize the heat of less than 0.3mm from the concrete cracks as defects; and some of the apartment of this case is seen to have been affected by natural disasters, such as typhoons, etc.; in full view of all circumstances, it is reasonable for the defendant to pay the defect repair bond to the plaintiff.

Therefore, the security deposit to be paid by the Defendant to the Plaintiff under each of the instant guarantee contracts is KRW 1,510,195,176 (=the aggregate of KRW 1,87,743,971 x 80%).

The aggregate of expenses for repairing defects in the table contained in the main sentence of 305, 205, 3636, 167, 297, 305, 367, 247, 368, 97, 97, 197, 197, 197, 197, 197, 197, 197, 197, 197, 197, 197, 197, 197, 297, 1963, 197, 297, 1963, 197, 197, 205, 297, 1636, 167, 305, 305, 297, 66305, 925, 608, 608, 1963, 1965, 16365,25364

D. Sub-determination

Therefore, as a guarantor of the obligation to repair defects under each of the instant guarantee contracts, the Defendant is obligated to pay to the Plaintiff the amount of KRW 1,510,195,176 and KRW 110,00,000,000, which is the day following the delivery date of the instant complaint, to the remainder of KRW 1,400,195,176, and to the remainder of KRW 1,400,176 as of November 1, 201 after the delivery date of the written request for correction of the cause of the claim and the written request for correction of the cause of the claim from November 2, 2011 to the date following the delivery date of the written request for correction of the cause of the performance, to the Plaintiff at least 5% per annum from September 19, 2012, which is the date of the final judgment, and to pay damages for delay calculated by 20% per annum from the next day to the date of complete payment.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claim is dismissed as it is without merit. Since the part against the defendant who ordered payment in excess of the above cited amount among the judgment of the court of first instance which partially different conclusions is unfair, it is revoked and the plaintiff's claim corresponding to the revoked part is dismissed, and the defendant's remaining appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Cho Jong-sik (Presiding Judge)