If a sales delegation contract between a contractor for a multi-family housing and a contractor for a multi-family housing is concluded by a method to recover the payment of the construction, if any defect is newly discovered after the completion inspection, whether the contractor may terminate the sales delegation contract (affirmative)

Even if a contract for the entrustment of sale between a contractor and a multi-family housing constructor was made in a way to recover the construction deposit against a contractor, if a new defect is found after the completion inspection, the contractor may claim the contractor for the repair of the defect, and the contractor may also claim compensation for the damages in lieu of the repair of the defect or together with the repair of the defect unless there are other special circumstances. Therefore, the contractor may refuse the contractor to pay the construction deposit until the contractor performs the obligation for compensation for the defect or the repair of the defect, and the contractor may refuse to pay the construction deposit until the contractor performs the obligation for compensation for the defect. In addition, if the apartment house is not sold at the normal price without repairing the defect, it is necessary to prevent the damage by preventing the contractor from selling it at a low price without repairing the defect. Thus, the contractor may terminate the contract for the entrustment of sale in lots for the same reason.

Articles 65, 667, and 689 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Han-sung, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Plaintiff 1 and four others

Defendant 1’s Attorney Park Jong-hoon, Counsel for the defendant-appellant

Seoul High Court Decision 84Na4147 delivered on October 10, 1985

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

According to the reasoning of the judgment below, the court below determined that the non-party 1 and the non-party 2 purchased the above non-party 1's apartment house at its own expense 24 square meters on the land owned by the defendant, but the non-party 1 and the non-party 2 purchased the above non-party 1's apartment house at its own expense until November 30 of the same year under the agreement that the non-party 1 purchased the above non-party's apartment house at its own expense and concluded a contract to preferentially cover the construction cost contributed by the above non-party 1 to the above non-party. The non-party 1 and the non-party 2's construction cost was completed on November 27 of the same year, 1984 and completed the completion inspection on the non-party 1 and the non-party 1 and the non-party 1 were not entitled to purchase the above non-party 1's apartment house at its own expense. The non-party 1 and the non-party 1 and the non-party 2's apartment house at its own price.

However, even though the delegation contract of this case between the defendant and the non-party was made as a means to recover the construction premium claims against the defendant, if new defects were found after the completion inspection, as determined by the court below, in the apartment house construction work of this case executed by the above non-party, the defendant, the contractor, can claim the above non-party, as well as claim compensation for damages in lieu of the repair of defects or the repair of defects. Except in special circumstances, the above non-party's right to claim compensation for damages simultaneously with the claim for construction expense. Thus, the defendant may refuse the above non-party's performance of the obligation to pay the construction expense until the above non-party performs the liability for compensation for defects or defects. If the defects were to the extent that the above non-party's apartment house cannot be sold at the arm's length price without repairing the defects, the defendant, the contractor, should be prevented from selling the above non-party at a low price without repairing the defects. Thus, the defendant can terminate the delegation contract of this case for this reason.

Therefore, the court below should have judged the legitimacy of the notification of the acceptance of the case by the defendant, without examining the parts and degree of the newly discovered defects after the completion inspection, and examining whether the continuation of the sale in lots can be seen as the good performance of the delegated affairs, and then the court below should have determined the legitimacy of the notification of the acceptance of the case by the defendant. However, as long as the construction of the apartment house of this case was completed and a lawful completion inspection was completed after the completion of the construction of the apartment house of this case, even if the defects were discovered after the completion of the construction of the construction of this case, the court below determined that the above non-party's disposal of the sale in lots could not be seen as a remarkably unfaithful performance of the affairs of this case by misunderstanding the legal principles as to the cancellation of the delegation contract, which affected the conclusion of the judgment. It constitutes an error of law by misunderstanding

Therefore, the judgment of the court below shall be reversed and the case shall be remanded to the court below. It is so decided as per Disposition by the assent of all Justices.

Justices Lee Jin-Post (Presiding Justice)