[Defendant-Appellee] The council of occupants' representatives (Law Firm Man-ro, Attorney Shin Jae-ho, Counsel for defendant-appellee)

Korea Housing Guarantee Co., Ltd. (Law Firm Gohap, Attorneys Lee Dong-ho, Counsel for defendant-appellant)

March 13, 2015

Suwon District Court Decision 201Gahap1078 Decided May 17, 2012

Seoul High Court Decision 2012Na45421 Decided January 24, 2013

Supreme Court Decision 2013Da15531 Decided November 13, 2014

1. Of the judgment of the court of first instance, the part against the defendant in excess of the following order of payment shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed. The defendant shall pay to the plaintiff 183,60,000 won and 101,00,000 won among them, 6% per annum from March 22, 2012 to November 13, 201, and 20% per annum from the next day to the date of full payment.

2. The defendant's remaining appeal is dismissed.

3. (a) On the basis of an application for the return of provisional payments, the Plaintiff shall pay to the Defendant 41,240,598 won and 5% interest per annum from December 22, 2014 to May 1, 2015, and 20% interest per annum from the next day to the date of full payment.

B. The defendant's remaining provisional payment claim is dismissed.

C. The above paragraph (a) can be provisionally executed.

4. Of the total litigation costs (including the application cost for the return of provisional payments), 1/5 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. Purport of claim

With respect to the Plaintiff KRW 183,60,000 and KRW 101,00,000 among them, the Defendant shall pay to the Plaintiff 82,60,000 by the following day of service of a duplicate of the complaint of this case, and with respect to KRW 82,60,000,00 by the rate of 6% per annum from the day following service of a duplicate of the complaint of this case as of March 16, 2012 until the day when each judgment of this case is rendered and 20% per annum from the next day to the day of complete payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

3. Purport of request for the return of provisional payments

The plaintiff shall pay 49,985,477 won to the defendant and 5% interest per annum from December 22, 2014 to the date of the instant judgment, and 20% interest per annum from the next day to the date of full payment.

1. Quotation of judgment of the first instance;

The reasoning for the court's explanation concerning this case is as follows: (a) the appraiser of the first instance court's 4th and 4th and 4th and 4th and 5th and 6th and 17th and the part of the 6th and 6th through 17th are deleted; (b) the part of the 2th of the 6th and 6th and the 6th and 6th are the reasons for the first instance court's decision; and (c) the part of the 2th of the 1st and 6th are the same as the reasons for the 420th and the 6th and 6th are the same as the reasons for the first instance

2. The changed part

B. The defendant asserts that Article 59 (1) and attached Table 7 of the Enforcement Decree of the Housing Act, which had been in force at the time of the inspection of the use of the apartment of this case, are limited to the case where the apartment of this case is likely to collapse or collapse as a result of the safety diagnosis due to the defect in the load-proof structure or the scope of the defect in the load-proof structure for five or ten years of the defect repair period. Thus, unless the plaintiff proves that the defect in this case occurred in the load-proof structure of the apartment of this case and the apartment of this case is likely to collapse or collapse, the defect repair period of this case for one to three years shall not be liable for the guarantee of the defect in this case under each of the respective guarantee contracts for the defect.

Article 46 of the former Housing Act (amended by Act No. 9405, Feb. 3, 2009; hereinafter the same) provides, “The project owner (including the building owner who has constructed an apartment house for the purpose of parcelling-out with a building permit under Article 8 of the Building Act and the constructor who has performed an act under Article 42 (2) 2; hereinafter the same shall apply in this Article)” under paragraph (1) of the same Article which provides, “The date of usage inspection of an apartment house (referring to the date of temporary use approval where a temporary use approval has been obtained for the whole apartment house within a housing complex) or the date of usage inspection of an apartment house under Article 18 of the Building Act provides, “When the project owner (including the building owner who has built an apartment house for the purpose of parcelling-out with a building permit under Article 8 of the Building Act and the constructor who has performed an act under Article 42 (2) 2 of the Building Act; hereinafter the same shall apply in this Article) shall be liable to compensate for any defect within the period prescribed by Presidential Decree.”

Meanwhile, Article 59 of the former Enforcement Decree of the Housing Act (amended by Presidential Decree No. 1935, Mar. 16, 2007; hereinafter the same) provides that "the scope of defects that a project proprietor is liable for repair under Article 46 (1) of the Act, the warranty period for each load-bearing structure and each facility construction shall be as shown in Tables 6 and 7," and Article 62 (3) provides that "the head of a Si/Gun/Gu may request an agency for safety inspection of the apartment house if he recognizes that there is a serious defect in the load-bearing structure of the apartment pursuant to Article 46 (4) of the former Housing Act, and Article 106 (1) 2 provides that "the warranty liability of the defendant may be guaranteed for the repair of defects that have occurred during the warranty period of defect liability pursuant to Article 59 (1) of the same Act."

In addition, attached Table 6 of the former Enforcement Decree of the Housing Act provides that “the scope of defects subject to repair of defects and the warranty period for each facility construction” shall be “a defect that may cause harm to the functions, pipes, or safety of a building or a facility due to ruptures, conditions, and deculatory forests, etc. caused by a mistake in construction,” and “the warranty period for each facility construction” shall be divided into one year, two years, and three years by type of construction.

Meanwhile, attached Table 7 of the former Enforcement Decree of the Housing Act provides that “the scope of defects subject to defect repair by load-bearing structure and defect liability period” shall be “where the relevant multi-family housing is collapsed due to a defect in the load-resistant structure or where it is determined that the relevant multi-family housing is likely to collapse as a result of safety diagnosis under Article 62(3)” and “the defect repair period by load-bearing structure” shall be 10 years for columns, load-bearing walls (excluding lighting walls that do not have power), beams, floors, and roof” and “five years for columns, load-proof structures, floors, and roofs.”

In addition to the above contents and structure of the housing-related Acts and subordinate statutes as well as the system, ① Article 46(1) and (3) of the former Housing Act, Article 59(1) and attached Table 7 of the former Enforcement Decree of the Housing Act intends to impose an aggravated liability for serious defects in the portions of proof-stress structures in light of such danger and key nature, and it appears not to be the purport of restricting the liability for repair only for serious defects such as where multi-family housing is likely to collapse or collapse. ② In the case of defects that are not serious defects in proof-stress structures, it constitutes a defect for which a business entity bears the responsibility for repairing defects pursuant to Article 46(1) of the former Housing Act, Article 59(1) and attached Table 6 of the former Enforcement Decree of the Housing Act (see, e.g., Supreme Court Decision 10 years, 10 years, 2 years, and 3 years, 4 years, and 6 years, respectively, of the Framework Act on the Construction Industry as well as 10 years, respectively.

In full view of the purport of the argument as a result of the appraisal of defects by the non-party to the first instance trial on this case, the defect in this case can be found to be a defect that occurred in the portions of the proof-stress structure of the apartment of this case. Thus, the defect repair period of this case is five or ten years, and the defect repair period of this case is five or ten years, and the defendant's above assertion is without merit on the premise that the apartment house is likely to collapse or collapse due to the defect in the portions of proof-proof structure.

3. Additional parts

C. Sub-committee

Therefore, with respect to the Plaintiff KRW 183,60,000 and KRW 101,00,000 among them, the Defendant is obligated to pay to the Plaintiff damages for delay at each rate of KRW 20% per annum as stipulated in the Commercial Act from March 22, 2012 on the record, which is obviously from February 16, 2011 to February 16, 2011, KRW 82,600,000 on the record that it is clear that the delivery date of a copy of the complaint of this case is the day following the delivery date of the copy of the written request for modification of the purport and cause of this case from March 16, 2012 to March 22, 2012, which is deemed reasonable for the Defendant to dispute about the existence and scope of each obligation, from March 22, 2012 to November 13, 2014.

4. Determination as to the application for the return of provisional payments

A. The defendant's assertion

On December 22, 2014, based on the sentence of provisional execution of the judgment of the court of first instance, the Defendant asserted to the effect that on December 22, 2014, the amount of KRW 183,60,00 for principal and KRW 103,403,403 for delay damages up to December 22, 2014, plus KRW 22,843,403,403 for delay damages, plus KRW 264,590,054 (287,43,403 - 22,843,349,349) calculated the withholding tax amount for the above delay damages by 22,843,40,349, and KRW 103,849 for delay damages up to December 22, 2014, the Defendant paid KRW 349,349,349,489,497,589,000 for delay damages by December 13, 2014,497.

B. Determination

1) As seen earlier, since the judgment of the court of first instance was partially revoked after the remand, the sentence of provisional execution of the court of first instance shall be partially invalidated by the sentence of the court of first instance after the remanding of the case. In full view of the purport of the entire pleadings in the statement in subparagraph 1-1 through 5 of the evidence No. 1-5, the Plaintiff may recognize the fact that he received the principal and interest of the judgment of the court of first instance from the Defendant on December 22, 2014, based on the sentence of provisional execution of the judgment of the court of first instance.

2) Meanwhile, where there is a dispute over the existence or scope of a claim between a payer of income and a beneficiary, and such dispute cannot be deemed to be obviously unfair in light of the nature of the case, profit cannot be deemed to have been determined. In addition, the amount paid after a judgment in favor of the beneficiary of the provisional execution ordering the beneficiary was rendered in the lawsuit and the payer appealeds the appeal shall be construed to constitute “goods paid according to the provisional execution declaration” under Article 215(2) of the Civil Procedure Act, unless there are special circumstances to recognize that the amount is a voluntary performance. Thus, the payment of the amount is not final and conclusive, and it is merely a provisional disposition on the condition that the provisional execution declaration or the principal judgment is revoked at the appellate court, and it is merely a provisional disposition on the condition that the provisional execution declaration or the principal judgment is revoked, and it cannot be deemed to have been paid the amount of income accrued from withholding (see Supreme Court Decisions 87Nu407, Sep. 27, 198; 91Da38075, May 26, 1992).

With respect to this case, since the above provisional payment is not fixed and provisional, it cannot be deemed that the income amount arising from the obligation to withhold is paid, and it cannot be deemed that the obligation to withhold was established at the time of the defendant's above provisional payment, or that the obligation to withhold was established at the time of the defendant's above provisional payment, the amount of withholding tax claimed by the defendant cannot be deemed to be included in the provisional payment amount

Therefore, the provisional payment to be returned by the Plaintiff to the Defendant cannot be calculated as alleged by the Defendant, and the amount of KRW 264,590,054 which the Plaintiff actually received from the Defendant should be considered as the provisional payment.

3) However, 264,50,054 won which the Plaintiff received as provisional payments is 183,60,000 won calculated on the basis of the quoted amount in the original trial after remand and damages for delay until December 22, 2014 [22,69,945 won [22,00,000 won x 0.06 x 0.06 x 1367 (from February 16, 201 to November 13, 201)/ 365 won (the remaining amount of less than KRW 465,00 won) x 2045 won (the remaining amount of KRW 46.3,00,000 x 2945 won) x 365% (the period from February 16, 201 to November 13, 201) x 205 won (the same shall apply 82,60,000 won) x 367.136.4

5. Conclusion

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claims are dismissed as without merit. Since the judgment of the court of first instance is unfair with a different conclusion, the part against the defendant in excess of the above part accepted part of the defendant's appeal 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. The defendant's claim for the return of provisional payment of this case is accepted within the above scope of recognition, and the defendant's claim for the return of provisional payment of this case is accepted within the above scope of recognition,

Judge Lee Jae-young (Presiding Judge)