Whether the provision of extinctive prescription applies to the right to claim damages in lieu of defect repair based on the contractor's warranty liability (affirmative)

The limitation period under Article 670 or 671 of the Civil Act is applied to the right to claim damages in lieu of defect repair based on the contractor's warranty liability, and this purpose is to promote prompt stability in legal relations. However, in light of the content, nature and purport of the right to claim damages of the contractor, where the provision of extinctive prescription under Article 162(1) of the Civil Act or the contract for work constitutes commercial activities, the provision of extinctive prescription under Article 64 of the Commercial Act shall apply to the right to claim damages of the contractor, and the application of the above provision of extinctive prescription under Article 670 or 671 of the Civil Act shall not be deemed to be excluded.

Articles 162(1), 667, 670, and 671 of the Civil Act; Article 64 of the Commercial Act

Supreme Court Decision 2011Da10266 Decided October 13, 201 (Gong2011Ha, 2339) Supreme Court Decision 2009Da25111 Decided December 8, 201 (Gong2012Sang, 107)

Seoul High Court Decision 2001Na11448 decided May 1, 200

Korea Land and Housing Corporation (Law Firm Han & Yang LLC, Attorneys Shin-o et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2010Na92577 decided June 17, 2011

The part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the Seoul High Court. The Defendant’s appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Plaintiff’s ground of appeal

The limitation period under Article 670 or 671 of the Civil Act shall apply to a claim for damages in lieu of a defect repair based on a contractor's warranty liability, and this purpose is to promote prompt stability in legal relations. However, in light of the content, nature and purport of the right to claim damages of a contractor, where the provision of extinctive prescription under Article 162 (1) of the Civil Act or a contract for such work constitutes a commercial activity under Article 162 (1) of the Civil Act, the provision of the extinctive prescription period under Article 64 of the Commercial Act shall apply to the claim for damages of the contractor, and the application of the above provision of the extinctive prescription period under Article 670 or 671 of the Civil Act shall not be deemed to be excluded due to the limitation period under Article 670 or 671 of the Civil Act (see, e.g., Supreme Court Decisions 201Da10266, Oct. 13, 2011; 209Da25111

Therefore, the court below did not make any decision as to the claim for damages in lieu of the defect repair of the apartment of this case, which is the defect liability of the contractor under the Civil Act, on the ground that the extinctive prescription is not applied to the claim for damages in lieu of the defect repair of the apartment of this case, but only the exclusion period is applied, and the defendant requested the defect repair to the plaintiff before the exclusion period expires, and thus the above claim for damages is not extinguished, but there is an error of law by misunderstanding the legal principles as to the extinctive prescription of the contractor's

2. As to the Defendant’s ground of appeal

According to the reasoning of the judgment of the court below, the court below accepted the judgment of the court of first instance and recognized the facts as stated in its reasoning. The court below determined that the defendant's claim for damages equivalent to the above consulting costs, etc. is not recognized on the ground that the defendant did not have any evidence to prove that the costs of 8,878,285 won raised by the plaintiff, such as appraisal-related consulting costs, appraisal document production costs, and contingent fees to attorneys, among the costs incurred in the lawsuit with the council of occupants' representatives in the apartment of this case, are ordinary damages with proximate causal relation to the plaintiff's non-performance of obligations under the contract of this case.

Examining the relevant legal principles in light of the records, the above determination by the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to omission of judgment or ordinary damages as alleged in the grounds of appeal.

3. Conclusion

Therefore, without examining the remaining grounds of appeal by the Plaintiff, the part against the Plaintiff among the judgment below is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. The Defendant’s appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all

Justices Kim Chang-suk (Presiding Justice)