[1] The meaning of "any defect that occurred after the inspection of use" under the terms and conditions of the warranty contract under Article 43-5 (1) 2 of the former Enforcement Decree of the Housing Construction Promotion Act

[2] In a case where a document of appraisal prepared by an appraiser who omitted an oath by mistake of the court is submitted as a documentary evidence by the party, whether the court may use it as a material for fact-finding

[3] Whether the evidence can be used as the grounds of appeal for the admission of evidence and the recognition of facts

[1] Article 38(15) of the former Housing Construction Promotion Act (amended by Act No. 6075, Dec. 31, 199); Article 17 of the former Decree on the Management of Multi-Family Housing (amended by Presidential Decree No. 16590, Oct. 30, 199) provides that the warranty period for new construction works of a housing project mutual aid association (hereinafter “association”) shall be set and the warranty period for the defect is not within the scope of the defect that may actually hinder the inspection or maintenance of the apartment house, and the warranty period shall not be limited to the defect that may actually hinder the inspection or maintenance of the apartment house due to the defect that occurred during the warranty period, and the warranty period shall not be limited to the defect that may actually interfere with the inspection or maintenance of the apartment house (the warranty period shall not be limited to the defect that occurred during the warranty period of the apartment house).

[2] The appraisal result by an appraiser who has not taken an oath shall not be admissible as evidence for fact-finding. However, even if the appraisal opinion prepared by a person with professional knowledge and experience outside the litigation is not based on the method of requesting an appraiser examination or appraisal under the Civil Procedure Act, and is written in writing, it may be deemed reasonable by the court as evidence for fact-finding when the document is submitted in documentary evidence. Thus, even in case where the court designates the appraiser and orders the appraiser to take an oath by mistake, and where the appraisal result by the appraiser becomes inadmissible as evidence because it is omitted, the document which contains the appraisal result prepared by the appraiser shall be submitted as documentary evidence by the party, and if the court recognizes the contents reasonable, it may be considered as material for fact-finding.

[3] The admission of evidence and fact-finding belong to the full power of the fact-finding court, and this does not constitute a legitimate ground for appeal unless it goes beyond the limit of the principle of free evaluation of evidence.

[1] Article 38 (15) of the former Housing Construction Promotion Act (amended by Act No. 6075 of Dec. 31, 1999) (see current Article 46 (2) of the Housing Act), Article 43-5 (1) 2 (see current Article 60 of the Enforcement Decree of the Housing Act) of the former Enforcement Decree of the Housing Construction Promotion Act (amended by Presidential Decree No. 16611 of Dec. 7, 1999), Articles 16 (1) and 17 of the former Decree of the Housing Construction Promotion Act (repealed by Presidential Decree No. 18146 of Nov. 29, 2003), Article 11 (1) [Attachment 3] of the former Rules of the Management of Multi-Family Housing (repealed by Ordinance No. 382 of Dec. 15, 2003) / [Attachment 2] Articles 202, 334, 340 and 342 of the Civil Procedure Act

[1] Supreme Court Decision 9Da69662 delivered on February 8, 2002 (Gong2002Sang, 650) Supreme Court Decision 200Da17193 Delivered on June 14, 2002 / [2] Supreme Court Decision 65Da1660 Delivered on October 26, 1965 (No. 13-2, 211), Supreme Court Decision 82Da317 Delivered on August 24, 1982 (Gong1982, 877), Supreme Court Decision 91Da4674 Delivered on April 10, 192 (Gong192, 1543) / [2] Supreme Court Decision 97Da57979 delivered on July 13, 199; Supreme Court Decision 2000Da38479 delivered on July 24, 209 (Gong20938Da19479 delivered on July 13, 20094)

The council of occupants' representatives (Law Firm Jeong & Yang, Attorney Ansan-sik, Counsel for plaintiff-appellant)

Korea Housing Guarantee Co., Ltd. (Law Firm, Kim & Lee, Attorneys Kang Yong-tae et al., Counsel for the defendant-appellant

Busan High Court Decision 2004Na19722 delivered on November 24, 2005

Each appeal is dismissed. The costs of appeal are assessed against each party.

1. As to the Plaintiff’s appeal

Article 38(15) of the former Housing Construction Promotion Act (amended by Act No. 6075, Dec. 31, 199); Article 17 of the former Decree on the Management of Multi-Family Housing (amended by Presidential Decree No. 16590, Oct. 30, 199); and Article 43-5(1)2 of the former Enforcement Decree of the Housing Construction Promotion Act (amended by Presidential Decree No. 1611, Dec. 7, 1999; Presidential Decree No. 22065, Jan. 16, 200; 206; 3.00, Jan. 16, 2006; 206; 3.00, Jan. 16, 2006; 206; 3.0. 3. 4. ; 3. ; 3. ; and 4. ; and 4. ; and 4. ; and 4. ; and 4. ; thus, it is still within the warranty period of the defect.

The court below, after compiling the adopted evidence, found the facts as stated in the judgment, and found the defects in the attached table of the judgment below as follows. The defects in the construction of tape 12 (16) household stories for preventing the malfunction of the floor surface of the household in the attached table of the judgment of the court below, the failure to install the 16th household water meter for preventing the wave of the household, the lack of the thickness of the removal of the underground feet 5 (5) underground strings, the failure of the 11th-party parking rail, the height of the PACON floor height in the 19th rooftop rail, the defect in the 19th rooftop rail, the defect in the attached table. (6) 26th-dong 26th Do-dong 1, the defect in the construction or the non-construction of the 1st-party toilet toilet, and the defect in the misunderstanding or the defect in the misunderstanding of the legal principles as to the above misunderstanding or the defect in the misunderstanding of the contents of the warranty after the change or construction itself, and the defect in the construction.

2. As to the defendant's appeal

A. The principle of free evaluation of evidence, which is declared under Article 202 of the Civil Procedure Act, refers to a dismissal from the formal and legal rules of evidence, not a judge's arbitrary judgment. Thus, the truth-finding should be judged in accordance with the principle of logic and experience in light of the principle of equity and social justice. Even if the fact-finding belongs to the exclusive jurisdiction of a fact-finding court, unless it is beyond the aforementioned limitation, the result of the appraisal by an appraiser who has not taken an oath cannot be considered as the material for fact-finding (see Supreme Court Decision 82Meu317, Aug. 24, 1982; Supreme Court Decision 82Da317, Aug. 24, 1982; Supreme Court Decision 2000Da31797, Jul. 13, 1999; Supreme Court Decision 2007Da4717, Apr. 27, 2007).

According to the records, the first instance court appointed the non-party 1 as an appraiser, but did not take an oath and did not request the appraisal pursuant to Article 341 of the Civil Procedure Act. After that, the non-party 1 submitted the appraisal report stating the result of the defect appraisal on the 1,800 households of the apartment of this case to the above court, but the defendant asserted that it is not admissible on the ground that it is the result of the appraisal by the non-sworn appraiser, the plaintiff submitted the above appraisal report to the above court with Gap No. 13, and the contents of the appraisal report are reasonable. Meanwhile, in light of the above legal principles, the above appraisal report of No. 13 is deemed reasonable. In light of the above legal principles, the court below is just and acceptable to consider the above appraisal report of No. 13 of this case as evidence in determining the existence of defects on the 1,800 households of the apartment of this case and in calculating the repair cost, and it cannot be said that there is

B. The preparation of evidence and fact-finding belong to the exclusive authority of the fact-finding court, and this is not a legitimate ground of appeal unless it goes beyond the limit of the principle of free evaluation of evidence (see Supreme Court Decision 2001Da33048, Aug. 24, 2001; Supreme Court Decision 2003Da61689, Jul. 15, 2005, etc.). Examining the above legal principles and records, the court below is just and persuasive to assess the cost of repair work for equal remuneration for each apartment of this case, taking into account the above appraisal statement by the witness Gap No. 13, the above appraisal statement by the witness No. 13, and it cannot be said that there is any illegality that misleads the facts against the rules of evidence.

C. After compiling the selected evidence, the court below rejected the defendant's assertion that the defect in the attached Table 3 of the judgment below of this case was a defect that occurred after the inspection of use, and that the defect in the attached section 3 of the attached table of the judgment below of this case is a defect that is subject to the warranty under the contract of this case, and further, the non-party 2 corporation (hereinafter "non-party 2") had already completed the defect repair in the defect in the above law, on the ground that although the non-party 2 did not repair the defect but did not remove the fundamental defect, it cannot be viewed as the completion of the defect repair. In light of the records, the above decision of the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to the meaning of "the defect that occurred after the inspection of the defect in the attached section of this case," which is the object of the warranty contract of this case, or which is the object of the warranty contract of this case.

D. The allegation in the grounds of appeal that the defect that partially collapsed in the area of the law of Macheon-si around September 2004 cannot be deemed to have caused "a guarantee accident" under the terms and conditions of the contract for the repair of defects unless the plaintiff notified the non-party 2 of the defect repair to the non-party 2, and therefore, since the requirements for the occurrence of the guaranteed obligation of the union were not satisfied, the defect that is collapsed in the above area of the law cannot be the subject of a guarantee cannot be a legitimate ground of appeal as it is a new argument at the court of final appeal. In addition, the above allegation in the ground of appeal that the defect in the construction of the law was not the subject of a guarantee upon the completion of the defect repair by the non-party 2, and the defect in the construction of the law at September 2004 is a separate new defect unrelated to the defect repair. However, as seen in the above paragraph (c) above, the defect in the construction of the above law was not completed, and therefore the defect in the construction of the above law cannot be accepted.

3. Conclusion

Therefore, each appeal is dismissed, and the costs of appeal are assessed against each losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)