Korea Land Trust Co., Ltd. (LLC, Attorney Park Sung-chul, Counsel for the plaintiff-appellant)

The administrator of the Dong-dong Housing Co., Ltd. (Attorney Yoon Young-young, Counsel for defendant-appellant)

February 27, 2013

Seoul Central District Court Decision 2012Gahap1063 Decided August 23, 2012

1. The judgment of the first instance, including the conjunctive claim added by the Plaintiff at the trial, shall be modified as follows:

A. The plaintiff's primary claim is dismissed.

B. The plaintiff's preliminary claim is dismissed.

2. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

A. First, the defendant shall pay to the plaintiff 212,00,000 won with an annual interest of 6% from December 30, 201 to the delivery date of the complaint of this case, and 20% per annum from the next day to the day of full payment (the claim for damages in lieu of repair of defects).

B. Preliminaryly, the Defendant shall pay to the Plaintiff 212,00,000 won with 5% per annum from January 28, 2010 to the delivery date of the instant complaint, and 20% per annum from the next day to the day of full payment (the Plaintiff added the conjunctive claim at the trial for damages due to tort).

2. Purport of appeal

A. The plaintiff

Of the judgment of the court of first instance, the part against the plaintiff falling under the following order to pay additional amounts shall be revoked. The defendant shall pay to the plaintiff 10,347,370 won with 6% per annum from December 30, 201 to the delivery date of the complaint of this case, and 20% per annum from the next day to the day of complete payment.

B. Defendant

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

1. Basic facts

A. On February 23, 2004, the Plaintiff was a project proprietor who constructed and sold the instant apartment ( Address 1 omitted) and ( Address 2 omitted) ground ○○○○○○ apartment (hereinafter “instant apartment”) at Chungcheongnam-si, Chungcheongnam-si (hereinafter “instant apartment”) and was awarded a contract for the instant new apartment construction with the contract price of KRW 32,715,114,300, and the construction period from February 28, 2004 to February 28, 2006 (hereinafter “instant contract”). Meanwhile, the Plaintiff underwent a pre-use inspection on the instant apartment on March 16, 2006.

B. In executing the new construction of the instant apartment, the Large-dong Comprehensive Construction failed to perform the construction works in accordance with the design drawing, or modified the construction differently from the defective construction or design drawing, and accordingly, the council of occupants' representatives requested the Plaintiff and Large-dong Comprehensive Construction to repair the defects in the instant apartment.

C. Nevertheless, the council of occupants’ representatives of the instant apartment that did not properly repair the instant apartment, filed a lawsuit against the Plaintiff and the construction mutual aid association, which is the project undertaker, for the repair of defects, on October 30, 2009, Seoul Central District Court 2009Gahap123676 (hereinafter “the instant apartment case”). The following amount is used to repair each of the instant apartment defects according to the results of the appraisal conducted on January 26, 2011, as the result of the appraisal conducted on June 28, 201, the fact inquiry conducted on October 10, 201, and the results of the additional appraisal conducted on October 14, 201, as well as the entrustment of appraisal supplementation made on October 14, 2011.

61,543, 591, 216, 216, 216, 464, 840, 5710, 682, 682, 688, 657, 11,930, 819, 269, 612,061 61,543, 591 common areas 216,103, 989, 989, 989, 432, 25640, 84710, 040, 68218, 98, 964, 3564, 10, 682, 18, 964, 365, 106, 1365, 97, 1364, 97, 607, 604, 1064, 28539, 2964

D. On November 14, 201, the above court rendered a compulsory adjustment order with the following purport: “Until December 30, 2011, the council of occupants’ representatives of the instant apartment, the Plaintiff’s KRW 576,00,000, and the construction mutual aid association’s payment of KRW 364,00,000, out of the respective money of the Plaintiff and each of the above money,” and around that time, the said compulsory adjustment order became final and conclusive.

E. On December 29, 201, the Plaintiff paid KRW 212,00,000,000, which is the remainder after subtracting the amount of KRW 364,000 paid by the Construction Mutual Aid Association from KRW 576,00,00,000, to the council of occupants’ representatives of the instant apartment.

F. Meanwhile, on February 19, 2009, the construction of the large-dong comprehensive housing was decided by Changwon District Court No. 2009 Mahap10, and the large-dong housing (hereinafter “large-dong housing”) was decided by the Changwon District Court No. 2009 Mahap9 on the same day and the Nonparty was appointed as the manager of the large-dong comprehensive construction and the large-dong housing. On January 28, 2010, the construction of the large-dong comprehensive housing was decided by the approval decision on the rehabilitation plan. On March 4, 2010, the large-dong comprehensive housing was dissolved by combining the large housing with the large-dong comprehensive housing and the large-dong housing was comprehensively succeeded to the rights and obligations of the large-dong comprehensive construction.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 4, 5, 6, Eul evidence Nos. 1 and 2 (including each number), the purport of the whole pleadings

2. Judgment as to the main claim

A. The plaintiff's assertion

Although the construction of the large-dong comprehensive construction should be executed in accordance with the design drawing according to the contract of this case, the part to be constructed in accordance with the design drawing was not constructed, or each defect of this case occurred due to the alteration of the defective construction or design drawing different from the defective construction or design drawing. Thus, the plaintiff is obliged to pay the plaintiff the above 212,000,000,000 won and delay damages damages to the large-dong comprehensive construction pursuant to the contract of this case under the Framework Act on the Construction Industry. The damages claim in lieu of the above defect repairs is finally established on December 29, 2011 where the plaintiff paid the council of occupants' representatives of the apartment of this case as the defect repair deposit in accordance with the compulsory adjustment order of the preceding civil case. Thus, it constitutes a priority claim established after the commencement of rehabilitation procedure against the defendant, and the defendant, the manager of the large-dong comprehensive construction, who is the manager of the large-dong comprehensive construction, is obligated to pay the above 212,000,000 won and delay damages.

B. Defendant’s assertion

The Plaintiff’s damage claim in lieu of the defect repair against the Defendant constitutes a rehabilitation claim since the cause thereof occurred by the instant construction that was completed prior to the commencement of the rehabilitation procedure against the Defendant, and the Plaintiff did not report it as a rehabilitation claim in the rehabilitation procedure against the Defendant. Since the Defendant was exempted from the liability due to the authorization of the rehabilitation plan against the Defendant without being stated in the list of rehabilitation creditors, the Plaintiff’s damage claim in lieu of the defect repair against the Defendant constitutes a claim which cannot be filed.

C. Determination

(1) Under the Debtor Rehabilitation and Bankruptcy Act (hereinafter “ Debtor Rehabilitation Act”), a rehabilitation claim refers to a property claim based on which the cause of the occurrence of a claim, such as an expression of intent, etc., was based on the cause prior to the commencement of rehabilitation procedures (Article 118 of the Debtor Rehabilitation Act). Therefore, even if the content of the claim based on the cause prior to the commencement of rehabilitation procedures is not specifically confirmed or the maturity of the claim arrives after the commencement of rehabilitation procedures, it does not affect the rehabilitation claim. Furthermore, the damage claim in lieu of the defect repair under Article 667(2) of the Civil Act exists against the contractor concurrently with the defect repair claim, and generally, the right to claim damages in lieu of the defect repair is established at the time of actual occurrence of damage, based on objective and reasonable judgment in light of social norms, and thus, it is reasonable to deem that the damage claim in lieu of the defect repair claim is established at the time of the occurrence of the defect

Under the above premise, the council of occupants' representatives of this case: (a) based on the overall purport of pleading No. 5, the defect repair claims of this case were 0,000,000 before the date of approval for the use of the apartment building of this case; and (b) based on the 2nd appraisal report of this case, it is difficult to recognize that the 2nd appraisal report of the apartment building of this case was 1st,00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,00.

(2) Meanwhile, according to the Debtor Rehabilitation Act, a custodian shall prepare and submit a list of rehabilitation creditors, etc. before filing a report with the court (Article 147), and any rehabilitation creditor, etc. recorded in the list shall be deemed to have filed a report pursuant to the provisions of the Act (Article 151). A rehabilitation creditor, etc. who intends to participate in rehabilitation procedures, regardless of whether it is entered in the list, shall report his/her rehabilitation claim to the court within the reporting period set by the court (Article 148), and if any rehabilitation creditor, etc. fails to report within the reporting period due to any cause not attributable to him/her, he/she may supplement such report within one month after the cause not attributable to him/her (Article 152), and if there exists a rehabilitation plan approval, the debtor shall be exempted from liability for all rehabilitation claims and rehabilitation security rights except

Therefore, when it is decided to authorize the rehabilitation plan, the rehabilitation company is exempted from its responsibility for all rehabilitation claims and rehabilitation security rights except as otherwise provided for in the rehabilitation plan, and thus, all of the rights recognized in the rehabilitation plan regarding reporting as well as unreported rehabilitation claims and rehabilitation security rights are exempted. Furthermore, Article 251 of the Debtor Rehabilitation Act provides that the exemption provided for in the rehabilitation plan is not de facto extinction of the debtor, but is a kind of natural obligation, the liability of which is extinguished and the obligation itself still exists, and thus, it is impossible to enforce the performance of the rehabilitation company (see Supreme Court Decision 2001Da3122, Jul. 24, 2001). Moreover, the lawsuit against natural obligation, the legal assertion of which is not recognized, is unlawful as it does not

(3) However, as seen earlier, the Plaintiff did not report the Plaintiff’s damage claim in lieu of the Plaintiff’s defect repair as a rehabilitation claim in the rehabilitation procedure against the Defendant, and the rehabilitation plan was granted in the condition that the claim was not entered in the list of rehabilitation creditors. As a result, there is no dispute between the parties. As a result, the Plaintiff’s damage claim in lieu of the defect repair claimed by the Plaintiff became void pursuant to Article 251 of the Debtor Rehabilitation Act, and thus, it is impossible to enforce the performance thereof. Therefore, the Plaintiff’s primary claim against the Defendant is unlawful as

3. Judgment on the conjunctive claim

A. The plaintiff's assertion

Even though the damage claim in lieu of the defect repair of the plaintiff's damage claim for the large comprehensive construction is a rehabilitation claim, the large comprehensive construction already received a request for defect repair from the occupants of the apartment of this case prior to the commencement order of the rehabilitation procedure, and the defendant is well aware of the existence of the damage claim in lieu of the plaintiff's defect repair at the time of the commencement order of the rehabilitation procedure. Thus, the defendant is well aware of the existence of the above damage claim, but he did not enter it in the creditor list intentionally or by negligence during the period of the rehabilitation period, so the above damage claim of the plaintiff was forfeited. Thus, the defendant is liable to compensate for

B. Determination

On or before February 19, 2009, which was the commencement date of the construction of the large comprehensive construction, the council of occupants' representatives of the apartment of this case requested the large comprehensive construction of the apartment of this case to repair the defects of the apartment of this case. However, there is no dispute between the parties. However, solely on the above facts alone, it cannot be deemed that the existence or scope of the liability for damages in lieu of the defect repair to the plaintiff of the large comprehensive construction at the time of the decision on the commencement of the above construction has been clearly clarified. Therefore, it cannot be readily concluded that the defendant omitted the damage liability in lieu of the defect repair to the plaintiff's large comprehensive construction of the apartment of this case from

In addition, the rehabilitation system is aimed at ensuring the efficient rehabilitation of debtors facing bankruptcy due to financial difficulties, while regulating legal relations among many interested persons, including creditors, shareholders, and equity right holders, in accordance with the rehabilitation plan, as alleged by the plaintiff, even though the defendant omitted the entries of the plaintiff's claims on the creditors' list intentionally or by negligence, it shall be deemed not permissible to allow the defendant to immediately recognize liability for damages other than the rehabilitation procedure in the rehabilitation procedure, despite the fact that there is a way to resolve them by adding the creditors' list within the rehabilitation procedure. Therefore, if the defendant knew of the plaintiff's damage claim of this case and did not enter it in the rehabilitation creditors' list, it would be deemed that the plaintiff would have sought the method of reimbursement through the rehabilitation procedure within one month from the date he became aware of the rehabilitation procedure under the Debtor Rehabilitation Act, by supplementing the report of the rehabilitation claim under the Debtor Rehabilitation Act. On different premise, the plaintiff's assertion that the defendant seeks damages equivalent to the above claim immediately on the ground of the forfeited rights of this case is without merit.

In addition, when any rehabilitation creditor fails to report within the reporting period due to any cause not attributable to him/her, the report may be supplemented within one month after such cause ceases (Article 152(1) of the Debtor Rehabilitation Act), and any subsequent supplement report may not be completed after an assembly of interested parties for examining the rehabilitation plan (Article 152(3) of the Debtor Rehabilitation Act). In cases where, as alleged by the Plaintiff, the Defendant knows the Plaintiff’s damage claim of this case and did not enter it in the list of rehabilitation creditors, notwithstanding Article 152(3) of the Debtor Rehabilitation Act, the Plaintiff may supplement the report of the rehabilitation claim within one month from the date on which he/she becomes aware of the rehabilitation procedure after the assembly of interested parties for examining the rehabilitation plan was completed (see Supreme Court Order 2011Da256, Feb. 13, 2012). Thus, the Plaintiff’s application for rehabilitation claim cannot be seen as being rejected by the Seoul Central District Court for reporting the Plaintiff’s right to the rehabilitation creditor regardless of the Plaintiff’s right to the aforementioned rehabilitation claim.

The plaintiff's preliminary assertion is without merit.

4. Conclusion

Therefore, the plaintiff's primary claim is dismissed as illegal, and the conjunctive claim is dismissed as it is without merit, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance, including the plaintiff's preliminary claim added at the court of first instance, shall be modified as above.

Judges Kim Jong-tae (Presiding Judge)

1) Article 23(1) of the Act: From the date of completion of the inspection, the contractor shall be liable for the repair of the defects in the subject matter of the project during the warranty period prescribed in the contract. Article 38(1) of the Act: The contractor shall be liable for the damages incurred to the subject matter of the project, a third party, etc. in relation to the project before or after the delivery

2) Article 28 of the Framework Act on the Construction Industry: A contractor shall be liable to the project owner for any defects arising during the period specified by Presidential Decree for each type of project within the following limits:

3) The above report arranged the contents of defects concerning 1 complex 263 households among the apartment of this case, and the preceding civil affairs case includes 2 complex 87 households. However, in light of the city event and the construction period, the building period, the identity of the finishing materials, the date of approval for use, and the contents and nature of the defects in the above report, it can be recognized that the two complex households have the same defects as claimed by the council of occupants' representatives in the preceding civil affairs until before the date of preparation of the above report.

4) If it is found that rehabilitation claims have not been entered on the list of rehabilitation creditors intentionally or by negligence as seen below, the report on rehabilitation claims may be supplemented within one month from the date on which a person related to the rehabilitation plan becomes aware of the rehabilitation procedures even after the assembly for examining the rehabilitation plan is completed.