The council of occupants' representatives (Attorney Kim Nam-sik, Counsel for the plaintiff-appellant) of the Ansan 15 Complex

Korea Land and Housing Corporation (Law Firm Professor, Attorneys Jeong Hong-sik, Counsel for defendant-appellant)

Credit Construction Co., Ltd. and two others (Law Firm Rate, Attorneys Kim Jong-soo et al., Counsel for the plaintiff-appellant)

September 28, 2011

Suwon District Court Decision 2006Gahap11094 Decided June 18, 2009

1.The judgment of the first instance, including any claims added in the trial, shall be modified as follows:

A. The defendant shall pay to the plaintiff 1,746,459,250 won and 1,673,082,513 won among them, 5% per annum from August 14, 2008 to January 18, 2012; 20% per annum from the next day to the day of full payment; 73,376,728 won per annum from August 31, 201 to the day of full payment.

B. The plaintiff's remaining claims are dismissed.

2. A. The plaintiff shall pay to the defendant 963,576,671 won as the return of the provisional payment and 5% interest per annum from July 23, 2009 to January 18, 2012, 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.

3. The total cost of the lawsuit between the Plaintiff and the Defendant (including the cost of filing an application for return of provisional payment) shall be 30%, the remainder shall be borne by the Plaintiff, the Defendant, and 30% of the total cost of the lawsuit due to the participation in the lawsuit shall be borne by the Plaintiff, and the rest

4. The parts on which the execution has not been declared in the judgment of the first instance court among the provisions of paragraph 1(a) and the provisions of paragraph 2(a) may be provisionally executed.

1. Purport of claim

The defendant shall pay to the plaintiff 2,568,155,839 won and 2,494,779,111 won among them, 5% per annum from August 14, 2008 to June 18, 2009; 20% per annum from the next day to the day of full payment; 73,376,728 won per annum from the next day to the day of full payment; and 20% per annum from the day of delivery of a copy of the claim and the application for change of cause as of August 30, 2011 to the day of full payment (the plaintiff was at the trial at the first instance court, and the plaintiff added a claim for damages due to the water leakage from each of the upper upper-rises household).

2. Purport of appeal

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

3. Purport of request for the return of provisional payments

The plaintiff shall pay to the defendant 2,646,858,11 won with 5% interest per annum and 20% interest per annum from July 22, 2009 to the date of a final judgment of the competent court, and from the next day to the date of full payment.

1. Facts of recognition;

A. The plaintiff is an organization composed of representatives from each Dong elected by occupants for the management of the 15-dong 15-dong 975 apartment complexes 15-dong Do-dong 175 apartment complexes (hereinafter "the apartment complex of this case") in Ansan-si. The defendant obtained business approval for the apartment of this case from the Ansan-si market and sold it in lots. The defendant's intervenor is the contractor who purchased the new apartment of this case from the defendant and the defendant's intervenor constructed the apartment of this case upon receiving a supply of the new apartment of this case.

B. On June 30, 199, the defendant obtained approval for the apartment project of this case from the Governor of the Gyeonggi-do, and made a notice of announcement on May 26, 200, and entered into a sales contract on June 1, 200 after receiving the application for parcelling-out from June 1, 200 to 16 days of the same month.

C. On April 20, 2002, the defendant had undergone a pre-use inspection on the apartment of this case from the Ansan market.

D. The Intervenor joining the Defendant did not construct the part to be constructed in accordance with the design drawing while constructing the instant apartment, or revised the defective construction or the design drawing differently from the design drawing. Accordingly, there was a defect such as the outer wall rupture, etc. (hereinafter “each of the instant defects”) through the joint use area of the instant apartment and the section for exclusive use as shown in the attached Table 1, and as of November 21, 2006, the appraisal base date was as of November 21, 2006, repair of each of the instant defects was 2,215,697,100 won (=the total amount of KRW 1,508,660,000 + the exclusive use area + KRW 707,037,000 (the joint use area) (the joint use area).

35,463,00 2. Construction Machinery and Equipment Improvement Works (Supplementary Structure Improvement Works) 9,469,000. 66,427,00. Electrical Equipment Improvement Works (Supplementary Parts Works) 3,66,00. 168,926,100 983,951,100 119,485,00 100 1. 700 70, 3777,000 19,000 5,207 19,47,000 70 1,5720,37,000 1,000 20,37,000 9,30,000 163,50,0616 and 165,000 prior to construction, 165,07,000 166,205,000 166,0610.

E. After the filing of the instant lawsuit, the Plaintiff received each claim for damages in lieu of the repair of each defect of the instant case from the sectional owners of 965 households among the total 975 households of the instant apartment, and received delegation of the right to notify the assignment of claims and notified the Defendant of each of such right at that time. The ratio calculated by dividing the whole area of the household, which completed the procedure for transferring the assignment of claims, into the whole area of the entire household, is 9.04% (=53,53,517.69 square meters x 100% x 100% x 10% x 3 decimal places).

F. Meanwhile, among the cost of repairing defects for the above section of exclusive ownership, the sum of the cost of repairing defects for the household that transferred the right to claim compensation in lieu of the defect repair to the Plaintiff is KRW 68,897,092 (i.e., remuneration for the details of the defect in the first instance trial + KRW 668,561,241 + KRW 20,335,851 (see attached Tables 3 and 4).

[Ground for recognition] Gap evidence 1, 3, 4, Gap evidence 5-1, 2, 6-1 through 12, Gap evidence 7-1 through 75, Gap evidence 8-1 through 15, Eul evidence 9-1, 1-2, 2-2, Eul evidence 2-1 and 2-2, the on-site verification result of the court of first instance, part of the non-party 1's appraisal result of the court of first instance, the fact inquiry result of the non-party 1 of the court of first instance, the fact inquiry result of the non-party 1 of the court of first instance, the fact inquiry result of the non-party 2 of the court of first instance, the fact inquiry result of the non-party 1 of the court of first instance, the results of the request for the supplementation of the appraisal to non-party 2 of the court of first instance, the results of the request for the supplementation of appraisal from the court of first instance to the

2. Occurrence and scope of liability for damages;

(a) Occurrence of applicable laws, regulations and responsibilities;

Article 46 of the amended Housing Act (amended by Act No. 7520 of Jun. 26, 2005) and Article 6 of the Addenda to the Act on Ownership and Management of Condominium Buildings (amended by Act No. 7502 of May 26, 2005; hereinafter referred to as the "Revised Aggregate Buildings Act") were enforced before May 26, 2005, in cases where a sectional owner claims compensation for damages in lieu of defect repair under the Aggregate Buildings Act with respect to an apartment house which was inspected for use or approved for use before the amendment, Article 46 of the amended Housing Act shall not be applied to the warranty liability and defect repair, and the contents and scope of the warranty liability shall not be determined pursuant to Article 9 of the Aggregate Buildings Act and Articles 667 through 671 of the Civil Act applied mutatis mutandis by it (see Supreme Court Decision 2008Da12439, Dec. 11, 2008, etc.).

The date of usage inspection of the building of this case is April 20, 2002, which was before the enforcement of Article 6 of the Addenda to the amended Housing Act and the amended Aggregate Buildings Act. Thus, the defendant is liable to compensate the plaintiff for damages in lieu of defect repairs, in accordance with Article 9 of the Aggregate Buildings Act and Articles 667 through 671 of the Civil Act applied mutatis mutandis thereby, as the seller of the building of this case.

(b) Warranty liability period;

The defendant and the supplementary intervenors (hereinafter referred to as the "defendants") asserted that, under the premise that the revised Housing Act is applied to this case, part of each of the defects of this case occurred after the expiration of the warranty period stipulated by the Housing Act and subordinate statutes (in particular, since the first defect of this case was completed, the existing defect occurred after the completion of the remuneration), and (ii) concerning the exclusion period, the physical separation, replacement, and individual repair of the buildings should be applied one year after the return to the principle of Article 670 of the Civil Act.

However, in this case, the defendant's assertion that Article 46 of the amended Housing Act is applied to the above paragraph (a) cannot be accepted on the ground of the above paragraph. In addition, the defect warranty period under Articles 670 and 671 of the Civil Act, which are applied mutatis mutandis by Article 9 of the Aggregate Buildings Act, is the exclusion period, which is a judicial or extra-judicial exercise period, and the proviso of Article 671 (1) of the Civil Act is applied to concrete structures such as the apartment of this case, and the period is ten years after delivery (see Supreme Court Decisions 2001Da24891, Jan. 27, 2004; 2009Da82060, Apr. 14, 2011, if any defect remains even after the defect repair is implemented, the defect warranty period for the above 10-year defect warranty period is still subject to the above claim. Therefore, all of the defendant's arguments are without merit.

(c) Modification and construction in preparation for project approval drawings;

1) Relevant statutes

Relevant statutes that were enforced at the time of approval for the apartment project of this case are as shown in attached Form 2.

2) Determination

A) The term "defect of a building" means a building, the construction contract of which is generally completed, which has a structural and functional defect different from the contents of the construction contract, or which does not have the normal quality and characteristics in light of the transaction concept. Whether the building is defective must be determined by comprehensively taking into account various circumstances, including the content of the contract between the parties concerned, whether the building was constructed in conformity with the design design, and whether the building-related statute meets the standards (see Supreme Court Decision 2008Da16851, Dec. 9, 2010, etc.).

In the case of multi-family housing, as in the instant apartment, the sale contract was executed by pre-sale or pre-sale construction, and thus, the buyer does not have the way to directly verify the apartment subject to sale at the time of the commencement of the sale contract, and the buyer is bound to construct the apartment in accordance with the drawings (basic design drawings) submitted after obtaining business approval pursuant to the provisions of the relevant housing statutes and the drawings (design drawings) submitted when filing a report on the commencement of the construction. In addition to the practice of the pre-sale or pre-sale, the sale order of the apartment and pre-sale and pre-sale, and the circumstances that allow the aforementioned method of sale, but strictly stipulate the procedure and the books to be submitted accordingly, the seller is obligated to construct the apartment in accordance with the project approval drawings and the starting drawings, barring any special circumstances. On the contrary, the altered construction portion shall be deemed to be the case where the seller fails to meet the warranty liability for the defect in its quality and quality, unless there is a improvement in its nature and quality compared to that set out in the project approval drawings and starting drawings.

B) As to the instant case, the items listed below in the Schedule I, unlike the project approval drawings of the instant case, shall be liable to compensate the Defendant for any defects which have been modified, executed, or failed to be executed, in a low quality.

(5) Change of 10th floor, 10th floor, 6th floor, 10th floor, 30th floor, 6th floor, 10th floor, 4th floor, 6th floor, 10th floor, 6th floor, 4th floor, 1000, 6th floor, 10th floor, 6th floor, 4th floor, 6th floor, 1000, 6th floor, 6th floor, 4th floor, 6th floor, 100, 6th floor, 100, 6th floor, 400, 6th floor, 6th floor, 100, 6th floor, 6th floor, 100, 6th floor, 60, 302-24th floor, 5th floor, 30,00.

C) As to the above defective items, the Defendant did not dispute as follows, but all of them are without merit.

(1) The defendant asserts that only the completion drawing should be the basis for the decision of defects.

On the other hand, the fact that an apartment building is constructed differently from the business approval drawing or the starting drawing is a case where it does not have the quality or nature as agreed to hold in the sale contract and falls under so-called subjective defect. The concept of defect of a building includes not only objective defect but also subjective defect. Thus, the defendant's above assertion is without merit.

See The defendant asserts to the effect that, in the case of the apartment of this case, the sales contract was concluded on the basis of the changed design, since the alteration of design was completed, and the sales contract was made on the basis of the sales contract.

As seen earlier, barring any special circumstance, it is deemed that a seller has the duty to construct an apartment building in accordance with the business approval drawing and the starting drawing in the apartment sale method. In addition, in order for the seller to enter into the sale contract to make a modification of the design drawing as mentioned above, it shall be deemed that the seller should actively incorporate the apartment into the sale contract by notifying the buyer of the modification and explaining the modification to the contract. If it is interpreted that performing the construction work in accordance with the modified design drawing is the content of the sale contract in a case where the seller unilaterally changed the design and concluded the sale contract after unilaterally changing the contract, it is interpreted that performing the construction work in accordance with the changed design drawing has become the content of the sale contract, it is likely to seriously infringe upon the legitimate expectation and interest that the apartment sale contract will be constructed in accordance with the business approval drawing, and the purpose of the housing law that provides for the business approval and the modification procedures.

In this case, according to each entry in the evidence Nos. 6, 7, and 8 of the above Additional Appraisal Items 3-3 of the above Additional Appraisal Items 7), the defendant made a public announcement of May 26, 200 and made and made public a sample house around that time, and the sale guidance paper produced at the time contain plastics in which the quality of the window was written. However, there is no evidence to prove that the windows of the sample house was made of plastic material as alleged by the defendant, and even if so, it did not take measures to include the construction of the window heading with plastic material into the content of the contract, so long as the defendant did not inform and explain the fact that the window heading had been constructed with plastic material to the buyer and to incorporate it into the content of the contract, it is inevitable for the buyer to have no choice but to expect the construction of the apartment house of this case as a result of the production of the drawings that obtained approval for the construction of the apartment house of this case. There is no other evidence to support the remainder in this case.

Secondly, the defendant asserts that the above items of defects fall under a minor design change rather than those subject to the approval of the project plan. Since the defendant fulfilled his duty to report and report under the law, it cannot be viewed as a defect even if they were executed differently from the project approval drawing.

㈎ 우선 피고는, 구 주택건설촉진법 시행규칙 제21조 제1항 제1호 에 해당하기만 하면 어느 경우에나 경미한 사항의 변경에 해당하여 같은 조 제2항 에서 정한 바대로 그 내용을 사업계획승인권자에게 보고하기만 하면 되는데, 이 사건에서는 상향시공된 금액이 하향시공된 금액을 오히려 초과하므로 위 하자 항목들은 모두 경미한 설계변경에 해당한다고 주장한다.

However, in light of Article 1(1)5 of the above Enforcement Rule, it should be interpreted to the effect that, even in cases falling under subparagraph 1, if it violates subparagraph 5, it should be subject to the approval of the business plan if the quality of the materials is equal to or higher than that of the materials at the time of obtaining the approval of the business plan. Since the above items of defects in this case fall under subparagraph 5 mainly in cases falling under subparagraph 5, the defendant must obtain the approval of the change of the business plan.

In addition, although the defendant asserts that all of the above defective items were reported as changed items, it is difficult to recognize that there was a report on changed items among the above defective items, such as item 3-3-1, 2, 3), 5, 9, 10, 13, 13.

㈏ 이어서 피고는, 사업승인도면에 비추어 변경시공된 부분이 있었다고 하더라도 준공검사과정에서 모두 제출되어 검토된 결과 사용승인이 나는 것이므로, 위 사용승인이 사업계획의 변경사항에 대한 사후 승인이라고 볼 수 있어서, 결국 위 변경시공에 대해서는 변경승인이 있는 것으로 된다고 주장한다.

However, there is no ground to view that approval for use of a building has the same effect as the approval for modification of a business plan, and as shown in Articles 33 and 33-2 of the former Housing Construction Promotion Act, apartment houses such as the apartment of this case are separated from the approval authority for modification (approval) and the inspection authority for use, the above argument by the defendant is without merit.

㈐ 마지막으로 피고는, 피고가 사업승인도면보다 상향시공해 준 금액이 위에서 본 하자항목들의 금액을 훨씬 초과하는 이상, 이는 손익상계 등의 원리에 따라 상계되거나 공제되어야 한다고 주장한다.

On the other hand, the Defendant’s argument appears to the purport that the buyer makes unjust enrichment with respect to the portion of the apartment constructed by the Defendant without any legal cause. The Plaintiff also recognized that there was a portion of the apartment constructed by the Defendant with respect to the apartment of this case. However, this was not caused by the need of the Defendant, but there was no evidence suggesting that the buyer consented to or ratified it, and there was no intention to assume additional costs for the portion of the apartment of this case. In other words, if the buyer recognizes the duty to return the benefit to the buyer, the buyer would not have any relation with his own decision and would be forced to pay the benefit to the buyer, and thus, it would be unfair that the buyer would be forced to receive the benefit other than his own decision, and therefore, it is not possible to recognize the Defendant’s right to claim the return of the apartment of this case. Accordingly, the Defendant’s argument based on this premise is without merit without any need to further examine.

D) Meanwhile, the Plaintiff asserts that the cost of repairing defects for the “change of the quality of windows by each household” among the above defect items should be calculated according to the result of the appraisal by the appraiser of the first instance trial rather than the result of the appraisal by the appraiser of the first instance trial.

In comparison with the result of the examination of the court of first instance, the result of the examination of the court of first instance is calculated on the basis of the estimate received by the specialized company with respect to Aluminium windows. This is not in accord with the type of windows (a window, double hold, a co-malinary type) and specifications (a large number of 24mms, the Madin pattern of the inner side) installed on the apartment of this case, but it is difficult to adopt because indirect costs and labor costs are excessive.

As to the result of the appraisal of a party, the Plaintiff asserts that: (a) applying the cost of materials only in plastic windows; (b) appropriated the cost of materials in excess of actual amount; (c) reduced the cost of materials in plastic windows; (d) applying the size of a unit for calculating the unit price for timber hold and timber hole; (e) applying the unit price for the timber hold and timber hole to the length of a unit; and (e) erroneously applying the set “number”, which is the unit for calculating the unit price for Alinium hold and plastic hold, to the length unit. However, considering the results of the appraisal and supplementary review of the party appraiser, the Plaintiff’s assertion is not acceptable, since it is difficult to view that there is any unreasonable reason in terms of the method of applying the unit price for the timber hold and timber hole and the timber hole and the calculation unit for each calculation unit, which is the unit price for the plastic hold.

(d) Repair of the crack of outer wall;

The Plaintiff asserts that the cost of remuneration should be calculated on the basis of the entire seal with respect to the defect in the outer wall rupture. However, according to the result of the appraisal and supplementary commission with respect to Nonparty 1 of the first instance trial appraiser Nonparty 1, if the part on the part of the outer wall rupture is colored within a range of 30 cm, the color size is limited to 7.06% of the entire size, and the cost of remuneration is reduced to a range of KRW 150 million,000,000,000 compared to the case of the entire rupture. In light of the fact that about 4 years and 7 months have elapsed from the date of the use inspection of the apartment in this case from the date of the use inspection to the date of the appraisal of this case, even without the entire rupture after the repair of the apartment in this case, it cannot be viewed as a obstacle to the aesthetic view. Therefore, with respect to the defect in the outer wall rupture of this case, the remuneration cost should be calculated in accordance with the 30cm range.

(e) Equal fever of less than 0.3mm;

1) The Defendant asserts that the heat below 0.3mm enters the scope of permissible cracks, and thus cannot be viewed as defects. However, according to the appraisal results of the first instance trial appraiser Nonparty 1 and the fact-finding results on the above appraiser, even though it is inevitable to generate fracks due to the characteristics of concrete given the characteristics of Korea, it is not reasonable to uniformly exclude fracks below a certain standard from remuneration, since it is difficult to increase the fracks due to the characteristics of Korea with severe temperature in each season. The Defendant’s above assertion is without merit.

2) The Defendant calculated the unit price of surface treatment costs in excess of KRW 10,015, and the first instance price was applied as of 2005, and thus, it is alleged that the first instance price was unfair. However, when based on the result of the request for the supplementation of appraisal to Nonparty 1, the above unit price cannot be considerably unreasonable if it is based on around November 2006, which is the reference point for appraisal in the instant case, and the first instance price was appropriately adjusted to be 2005. The Defendant’s above assertion is without merit.

(f) Equal defect repair in the upper part, except outer walls;

The defendant asserts that the part of the remaining part except the outer wall should be repaired in the way of a emulsion. However, in full view of the appraisal result of the non-party 1 of the first instance trial and the result of the entrustment of appraisal and supplementation to the above appraiser, the above appraiser should repair the emuliating part with respect to the emuliating part of other part except the outer wall, and find it appropriate that the above appraiser should take the whole emuliation of the defect. In light of the aesthetic problem of the emuliation of the parts where the emuliation occurred, the above appraiser's

(g) Rate of discount on complaint;

The defendant asserts that the premium rate of 50 to 60% recognized as the result of the appraisal in the first instance court was set excessively high. However, when examining the result of the entrustment of appraisal to Nonparty 1, the above appraiser excluded the use of equipment for the work of filing a complaint and applied the premium rate by means of economic reduction, and applied the premium rate to the above appraiser. The above appraiser's judgment cannot be deemed significantly unfair. The defendant's above assertion is without merit.

(h) assertion of 87% of the estimated remuneration costs.

When calculating the cost of repairing defects, the defendant asserts that it should be based on the level of 87% of the estimated price in consideration of the successful bid price ratio, but it is reasonable to apply the daily price table of construction works and the price table prepared by the Korean Water Association as it is, so the defendant's above assertion is without merit.

(i) Determination on individual items;

1) The defendant asserts that the items stated in the following specifications cannot be viewed as defects, but the defendant's argument is without merit as seen in the "judgment" column.

본문내 포함된 표 순번 하자내역 주장 요지 판단 별지 1 표 중 1-1 6) 주현관 출입구 하부벽체 시멘트몰탈 미시공 현재 시공된 상태가 견출마감공법인 것은 사실이나, 시설물의 기능·미관 또는 안전상의 지장을 가져올 정도의 하자라 할 수 없다. 품질향상을 위해 양호한 거푸집을 사용하였으므로 보수비용 산정에 참작하여야 한다. 미시공된 부분에 한해 사용승인도면대로 시멘트 몰탈을 시공하는데 드는 비용을 산출하였으므로 적정한 보수비용이다. 양질의 거푸집이 시공되었다는 피고의 주장은 인정할 자료가 없다. 1-1 7) 1502동 1층 출입구 장애인 램프 난간 파이프 파손 이삿짐 운반 등 사용자의 과실에 의한 외부 충격으로 훼손된 것이므로 원고의 과실에 의한 것이다. 하자가 발생하게 된 근본원인은 난간을 고정하는 부위가 부실시공 되었기 때문이다. 1-1 8) 1512동 1층 장애인 램프 난간 마감부위 파손 원고가 정기적인 보수관리를 하지 않아 장기간 균열을 방치한 결과이다. 시공된 콘크리트 턱의 부실시공(몰탈미장)으로 몰탈면이 파손되어 난간이 탈락된 것이다. 1-1 10) GL에 접한 벽체 바닥침하에 의한 외벽 노출 화단의 표토정리는 원고의 유지관리 사항이다. 지하층 공사 시 굴착 후 되메우기하였던 부분이 부실시공되어 침하됨으로써 벽체 일부가 노출된 것이다. 1-1 15) 각동 옥상층 배수로 줄눈 미시공 건물의 옥상배수로에는 바닥줄눈을 설치하는 것이 아니다. 이 사건 배수로는 보호몰탈이 아니라 방수마감층인데, 방수마감층을 절개하여 줄눈을 설치하는 것은 방수층을 절단하는 것이므로 불가능하다. 아니라면 줄눈을 파내는 방식에 의한 보수비를 산정해야 한다. 미시공된 옥상 배수로 바닥의 줄눈을 시방서대로 시공하는데 드는 비용을 산출한 것이어서 적정하다. 1-1 17) 1508동 등 옥상대피소 벽체 방수턱 시공 누락 사용승인도면상의 오류를 수정하여 시공한 것으로, 방수 기능 및 미관, 안정상 지장이 없다. 사용승인도면과 코아단면상세도대로 시공되지 아니하였다. 피고의 주장은 인정할 자료 없다. 1-1 22) 각동 현관문 주위, 창호 주위 등 바닥균열 지붕과 옥탑 바닥에 시공된 바닥 몰탈의 균열은 수축팽창에 따른 균열이므로 보호몰탈로서 기능상 지장이 없다. 개구부 응력집중 및 건조수축, 바닥보호몰탈 부실시공 및 재료배합 부량, 건조수축 등의 원인에 의해 균열이 발생하였다. 1-1 30) 계단실 바닥 테라조 타일 파손 및 균열, 벽체마감 불량 시공상 잘못이 없고, 균열 등이 발생하지 않았다 일부 테라조 타일에 파손 및 균열이 발생되었고, 계단실 벽체의 배관이 트레이 매입부분에 도장을 미시공하였다. 1-1 31), 32), 35) 지하대피소 벽체균열, 천장균열, 바닥 및 벽체몰탈 들뜸 시설물의 기능·미관 또는 안정상의 지장을 초래할 정도는 아니다. 응력집중 및 건조수축, 부실시공 등의 원인으로 균열과 몰탈들뜸이 발생하였고, 일부 균열부에서는 백화가 발생되었다. 1-1 40) 지하주차장 경사로 연석부위 오픈트렌치 미시공 사용승인도면상의 오픈트렌치 형태의 공사가 사실상 불가능하여 표준적인 방법으로 변경시공되었다. 피고의 주장을 인정할 자료가 없다. 1-1 41) 지하주차장 외벽 천장 보 액체방수 및 보호몰탈 시공 누락 외부쪽 방수를 보강하여 내부쪽 방수가 생략된 것으로, 기능·미관 또는 안전상의 지장을 초래할 정도 아니다. 피고의 주장을 인정할 자료가 없다. 1-1 43) 지하주차장 기둥 코너 범퍼 높이 규정 미달 당초 사용승인도면대로 시공되었으나 외부충격으로 파손된 것이다. 사용자측 과실이다. 피고의 주장을 인정할 자료가 없다. 1-1 52) 지하주차장 보수 후 마감 미처리 및 전장데크 플레이트 녹 발생 누수균열부위 주변으로 폭 1m 내외로 그라우팅 보수공법을 실시하면 보수가 완료되므로, 위 범위를 넘는 보수비용은 삭감되어야 한다. 외부화단이나 조경부분 등을 걷어내고 방수공사를 할 경우 누수부분을 정확히 찾기 어렵고 공사가 난해하여, 다소 보수범위를 넓혀 그라우팅 공법에 의한 보수방법을 제시한 감정인의 판단이 적정해 보인다. 1-1 66) 단지내 고압블럭 및 점토블럭의 물고임 등 시공상 잘못이 없다. 사용자가 정기적으로 보수관리를 하여야 할 대상이다. 보조기층 및 모래 안정층 포설 등 다짐불량에 의해 일부 고압블럭 및 점토블럭이 침하되어 균열이 발생하거나 침하된 것이다. 일부 장애인 진입부 바닥은 단차가 심하여 휠체어 등 통행에 지장이 있다. 1-1 67) 단지 내 산책로 및 L형 측구 등 물고임 시공상 허용오차 범위 내의 경미한 사항 또는 반복사용에 의한 토사의 침하, 유출이다. 시공부실 및 다짐불량 등에 의해 부분 침하되거나 면처리가 불량하여 우천시 물이 고이는 것이다. 1-2 7) (1) 배수펌프 배관방진이음미시공 자흡식 펌프로 방진이 필요 없는 부분이다. 시방서대로 시공되지 아니하였다. 1-2 7) (1) 배수펌프 배관 일부 압력계 위치 오시공 압력계가 정상 설치되었다. 감정인의 감정결과를 뒤집을 자료가 없다. 1-2 8) (1) 오배수관 소제구 일부 오시공 소제공간 확보불량 설계도서에 따라 시공되었으나, 일부 구간은 소제공간 확보가 불가능하다. 감정인은 소제구 주위의 공간이 협소하여 청소하기 불가능한 개소에 한해 소제구를 조정 시공하는데 드는 비용을 산출한 것이므로, 위 감정결과가 적정하다. 1-3 6) 상수도 소화전 매립 불량 조경화환 등 표토는 설계도면에 맞게 시공되었으나, 폭우 등 외부요인에 의하여 의해 일부 지반 표토가 유실된 것이므로, 원고가 유지 보수하여야 할 사항이다. 상수도 소화전 주위의 흙에 대한 다짐작업이 부실하였다. 1-3 9) 관리동 장애인용 변기 고정 불량 고정불량으로 인한 흔들림 현상은 사용자의 과실로 발생한 것이다. 고정불량은 시공상 잘못이다. 1-4 8) 중앙 분수대 막대형 조명등 밑부분 고정 불량 고정불량으로 인한 흔들림 현상은 사용자의 과실로 발생한 것이다. 볼라드등 9개에 대한 하단부 고정불량은 시공상 잘못이다. 1-4 13) 지하조서 결로 등 전등회로 누전 불량 원고가 유지 관리하여야 할 사항이다. 결로 등으로 기능이 불량하다. 1-4 14) 방재실 화재수신반 오작동 소모성 부품으로 구성된 설비로 사용자가 유지 관리하여야 할 사항이다. GR형 복합수신기에 여러 차례 에러메시지가 나타나 아파트 자체에서 중계기를 보수하였다. 1-5 11) 아파트 옥상 배수로 안전 난간 없음 옥상배수로는 지붕이므로 난간은 필요 없으며, 설계도면에 맞게 시공되었다. 아파트 옥상 출입 등 점검 및 하자보수 등 유지 관리 시 안전에 심각한 위험이 있다고 할 것이므로, 건축물이 통상 갖추어야 할 성상을 갖추지 못한 것이다. 2-1 5) 발코니 배수시설 미시공 발코니는 외부에 창이 설치되어 실내로 사용되고 있어 배수구를 막아 놓고 사용하는 것이 현실이어서 이에 따라 시공하지 않은 것이다. 사업승인도면에 비추어 미시공된 하자이다. 2-1 6), 7) 현관 문틀 등 결로로 곰팡이 및 녹 발생 측벽체 등 결로 및 녹 발생 일부 세대 내부 벽체 곰팡이 녹 발생은 환기 부족 등 사용자의 과실로 인한 것이다. 관련 법규에 비추어 볼 때, PE필름 1겹이 미시공되었고, 열관류율이 미달되었다. 2-1 8) 욕실, 발코니 벽 바닥타일 균열 및 들뜸 외부충격 등 사용자의 과실로 인한 것이다. 응력집중 및 부실시공 등 원인으로 발생한 것이다. 2-1 10) 침실문짝 개폐 불량 등 장기간 사용 및 사용상 과실로 인한 것이다. 목재표준 건조상태 불량이 원인이 되었다. 2-1 11) 주방기구 등 수직, 수평불량, 휨 이격 등 장기간 사용 및 사용상 과실로 인한 것이다. 부실시공 및 불량재료 등이 원인이 되었다. 2-1 12) 거실, 주방 바닥재 이격 들뜸 장기간 사용 및 사용상 과실로 인한 것이다. 건조수축 또는 품질 등의 원인과 배수관 역류로 인하여 바닥재 오염 등이 발생하였다. 2-1 1) 일부위생설비 시공불량 장기간 사용 및 사용상 과실로 인한 것이다. 고정 시공불량 등 원인으로 발생하였다. 3-1 1) 지하주차장 환기구 지붕 미설치 사용승인도면에 따라 시공되었다. 우천시 지하주차장으로 빗물 및 오염물질이 떨어져 환기구 하부 주차공간에 10대 정도 주차를 못 하고 있으므로, 이는 건축물이 통상 갖추어야 할 성상을 갖추지 못한 것이다. 3-2 2) 지하주차장 램프 입구 부위 및 지하주차장 계단 배수로 미설치 설계도면에 표기되어 있지 않다. 해당부위 바닥은 지하층인데 누수되어 바닥에 물이 고여있거나 젖어있는 상태여서 사용상 불편이 초래되고 있으므로, 이는 건축물이 통상 갖추어야 할 성상을 갖추지 못한 것이다. 3-2 3) 조경부위 녹지경계석 높이 오시공 기능이나 미관, 안정상 지장이 없다. 하자로 인정되더라도 철거 후 재시공은 과다한 비용이 소요된다. 우수시마다 토사 및 오물이 보도나 도로로 흘러내리고, 하절기에는 도로나 보도로 잔디나 풀이 자라나오고 있으므로, 감정인이 판단한 보수방법이 적정하다. 3-2 5) 난방배관 누수방지공사 퇴수관은 설계도면에 따라 시공되어 기능상 장애가 없다. 퇴수관 기능 기능회복 및 유지관리를 위한 감정인의 판단이 적정하다. 3-4 1) 싱크배수용 바닥 배수관 역류 사용자 관리소홀로 음식물 찌꺼기 등이 배수에 지장을 주는 것이다. 배수관 역류 세대의 규모를 볼 때 보수가 필요하다는 감정인의 판단이 적정하다.

2) Meanwhile, on the grounds as seen in the column of “judgments”, the following items cannot be deemed as defects or should be reduced in part of the cost of repairing defects. Therefore, the Defendant’s assertion pointing this out is with merit.

According to the detailed specifications of 1-1 of the table Nos. 1 to 4 contained in the main text, 1-1 to 26 of the table Nos. 1 to 6 is not detailed among the stairs 1 to be omitted. At present, construction condition is based on the detailed level of stairs, so it cannot be viewed as a defect. According to the construction specifications of 1-1 to 4), it is recognized that the thickness of 2,406,00 won is 15mm. Therefore, among the defect repair cost, 1-1-165 of the construction specifications of 1-1 to 4 of the construction site (the construction specifications of 1-1 to 3 of the construction site-1 to 4 of the construction site-1 to 6 of the construction site-1 to 4 of the construction site-1 to 5 of the construction site-1 to 6 of the construction site-1 to 3 of the construction site-1 to 4 of the construction site-1 to 10 of the construction site-1 to 3 of the construction site-17 of the construction site-2 of the construction site.

(j) limitation of liability.

In light of all the circumstances, such as the fact that the five-year period has elapsed from the inspection of the use of the apartment of this case until the inspection of the defects in the first instance trial, and the fact that there is a natural aging phenomenon, the possibility that the defects have been expanded due to the plaintiff's fault in the management cannot be ruled out at all. In light of the environmental factors and material characteristics, it is reasonable to limit the defendant's responsibility to 80% of the total repair cost in accordance with the principle of good faith and fairness.

C. Damages to be paid by the Defendant

1) Section 1,195,341,569 for common use

[The amount of KRW 1,138,233,521 (the amount of KRW 1,436,583,100 x the amount of KRW 9.04 x the ratio of the defendant's liability) + 57,108,048 won (the amount of KRW 72,07,000 for the assessment of the current trial x the amount of KRW 9.04 x the ratio of the defendant's liability) x the amount of KRW 80 x the amount of KRW 1,436,583,100 (the same shall apply hereinafter).

(ii) section 51,117,672

[See = 534,848,991 won (668,561,241 won x 80%) + 16,268,68,680 won (20,335,851 won x 80%)

3) Sub-decisions

Therefore, the Defendant’s damages in lieu of defect repair amounting to KRW 1,746,459,250 (i.e., common areas of KRW 1,195,341,578 + KRW 551,117,672) and KRW 1,673,082,513 (i.e., expenses for defect repair of common areas subject to appraisal by the first instance court + KRW 1,138,23,521 + the cost for defect repair of common areas subject to appraisal by the first instance court + KRW 534,848,92), as requested by the Plaintiff, 1,746,459,250 (i.e., the date following August 14, 2008 on which the duplicate of the request for alteration of the purport and cause thereof was served to the Defendant, and (ii) from August 14, 2008 to 208, the Defendant’s additional claim for defect repair damages amounting to KRW 18685% per annum.

3. Determination on the application for the return of provisional payments

A. The court of the first instance ordered the Plaintiff to pay 5% interest per annum from August 14, 2008 to June 18, 2009, and 20% interest per annum from the next day to the day of full payment. On the other hand, the court of first instance sentenced the above amount of provisional execution. In addition, according to the evidence No. 21-1 to No. 21-4, the Defendant paid 2,646,858,111 won to the Plaintiff on July 22, 2009 as principal and delay damages pursuant to the judgment of the first instance court of the provisional execution of this case.

However, as seen earlier, the trial held that the amount of KRW 1,673,082,513 and the amount of KRW 5% per annum from August 14, 2008 to January 18, 2012, and the amount of KRW 20% per annum from the next day to the day of full payment, excluding the claims added in the trial. Accordingly, the portion exceeding the amount cited by the trial in the provisional execution sentence of the judgment of the first instance is invalidated by this judgment. Accordingly, the Plaintiff is obliged to return the amount of the provisional payment received from the Defendant, which exceeds the amount cited by the trial in the judgment of the first instance.

B. Furthermore, we examine the scope of return.

1) The provisional payment that the Plaintiff received from the Defendant is KRW 2,646,858,11.

2) Based on the aforementioned provisional payment payment date ( July 22, 2009), the Plaintiff calculated the amount of damages to be paid as of the date of payment of the provisional payment as follows.

* Principal: 1,673,082,513

* Delay damages: 10,198,927 won

[See1,673,082,513 won 】 (5% 】 309/365 + 20% x 34/365)]

* Total KRW 1,683,281,440 (= KRW 1,673,082,513 + 10,198,927)

3) Therefore, on July 22, 2009, the Defendant paid the Plaintiff more than KRW 963,576,671 (=2,646,858,111 - KRW 1,683,281,440).

C. Therefore, upon filing an application for the return of provisional payment, the Plaintiff is obligated to pay to the Defendant the amount of KRW 963,576,671, and the damages for delay at each rate of KRW 5% per annum under the Civil Act from July 23, 2009 to January 18, 2012, which is the day following the day of receiving the provisional payment, and KRW 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the following day to the day of complete payment.

4. Conclusion

If so, the plaintiff's claim except for the plaintiff's claim added in the trial for the above reasons within the above recognized scope, the remaining claims shall be dismissed as without merit, and the plaintiff's claim added in the trial for the above reasons shall be accepted as with merit. Since the judgment of the court of first instance is partially unfair, it shall be accepted in part of the defendant's appeal and the judgment of the court of first instance shall be modified as above, and the defendant's claim for return of provisional payment shall be accepted within the above recognized scope, and the remaining claims shall be dismissed as without merit. It

[Attachment]

Judges Cho Young-chul (Presiding Judge)