The council of occupants' representatives of Hosung-ju 1, 200 (Law Firm Newly, Attorney Lee Jong-hwan, Counsel for the plaintiff-appellant)

Korea Land and Housing Corporation (Law Firm Han & Yang LLC, Attorney Park Dog-young, Counsel for defendant-appellant)

Columno Construction Co., Ltd.

April 21, 201

Suwon District Court Decision 2008Gahap9088 Decided September 8, 2010

1. The part against the plaintiff corresponding to the money ordered to be paid under the judgment of the court of first instance shall be revoked.

The defendant shall pay to the plaintiff 279,868,151 won and 101,00,000 won among them, 5% per annum from August 28, 2008 to June 9, 201, and 20% per annum from July 14, 2010 to June 9, 201, respectively.

2. The plaintiff's remaining appeal is dismissed.

3. Of the total costs of litigation, 50% of the portion arising between the Plaintiff and the Defendant is borne by the Plaintiff, the remainder is borne by the Defendant, and 50% of the portion arising from the participation in the lawsuit is borne by the Plaintiff, and the remainder is borne by

4. The monetary payment portion under paragraph (1) may be provisionally executed.

The judgment of the first instance is revoked. The defendant shall pay to the plaintiff 493,841,924 won and 101,000,000 won among them from the day following the day of delivery of a copy of the complaint of this case; with respect to KRW 392,841,924, 20% interest per annum from the day following the day of delivery of a copy of the application for extension of claim of this case and modification of cause of this case until the day of full payment.

1. Facts recognized;

A. The defendant (the "Korea National Housing Corporation" at the time of construction, the above Korea National Housing Corporation was merged with the "Korea Land and Housing Corporation" under Article 7 of the Addenda to the Korea Land and Housing Corporation on October 1, 2009, and the Korea Land and Housing Corporation took over the lawsuit of this case on November 3, 2009 by the Korea Land and Housing Corporation; hereinafter the "Defendant" was 1,91 units of 1,23 units of 105 units of 101 units of 1,23 units of 105 units of 105 units of 101 to 445 units of 105 units of 105 units of 105 units of 105 units of 197, and around that time, the above Korea Land and Housing Corporation was merged with the "Korea Land and Housing Corporation" under Article 7 of the Addenda to the Korea Land and Housing Corporation, and on September 1, 2002, the plaintiff of this case is the owner of this case's apartment and the plaintiff.

B. Upon the occurrence of defects, such as the outer wall of the apartment in this case, which are equal to the section for common use and part of the section for exclusive use, and the occurrence of water leakage, ① the sectional owners indicated in the column of “the first transfer” list among the 445 households of the apartment in this case (hereinafter “the first transfer”) in the attached list of the assignment of the apartment in this case transferred the right to claim damages in lieu of each defect repair to the Plaintiff and the Plaintiff-based limited liability company, on two occasions on August 12, 2008 and January 20, 2009 (hereinafter “the first transfer”), and ② the sectional owners indicated in the attached list “the second transfer” (hereinafter “the second transfer”) withdrawn the transfer of the substitute house management and transferred the right to claim damages in lieu of each defect repair to the Plaintiff on April 2010 (hereinafter “the sectional owners who transferred the claim to the Plaintiff via the second transfer”).

The plaintiff was delegated by the sectional owner of this case with the authority to notify the assignment of claims, and accordingly notified the defendant of the above assignment of claims around August 12, 2008, around January 2009, and around June 7, 2010.

C. A claim for damages in lieu of defect repair was entirely transferred to the Plaintiff by a sectional owner (27 households indicated in the remarks column of the list of co-owners (259.5 households indicated in the "same" in the attached sheet of assignment), a sectional owner who acquired ownership after the first transfer (47 households indicated in the "owner change" in the same remarks column) and a sectional owner who acquired the second transfer (27 households indicated in the same remarks column of the same remarks column) who conducted the first transfer and the second transfer, and only a claim for damages in lieu of defect repair was transferred to the Plaintiff. It can be evaluated that only one-half of the claim for damages was transferred to the Plaintiff by a sectional owner (7 households indicated in the "first" in the remarks column of the same remarks column) who did not transfer the second transfer and

이 경우 채권양도를 한 세대수는 총 372세대, 그에 해당하는 전유면적의 합계는 16,990.7325㎡이고, 총 445세대의 전유면적 합계는 20,330.2700㎡이므로, 채권양도를 한 세대의 총 세대수에 대한 전유면적의 비율은 83.57%(≒ 16,990.7325/20,330.2700)이다.

D. On February 2, 2010, the appraisal of the first instance trial had been conducted, there remains any defects arising from the non-construction and erroneous construction, such as the entry of the cost calculation sheet in the section for exclusive use and common use of the apartment in this case, and in order to repair the defects, the appraiser appraised that the remuneration cost of KRW 444,715,00, such as the items of the construction cost in the said specification (=the construction cost of section for exclusive use + the construction cost of KRW 171,414,000 + the construction cost of KRW 231,239,000)

[Ground of recognition] The fact that there is no dispute, Gap 3, 4 (including a provisional number), the result of the appraisal of defects by the non-party to the first instance appraiser, the result of the on-site verification by the court of first instance, the purport of the whole pleadings

2. Arrangement of applicable principles;

A. The plaintiff received a claim for damages in lieu of defect repair from the sectional owner of this case, and filed a claim against the defendant for damages in lieu of defect repair pursuant to Article 9 of the Act on the Ownership and Management of Aggregate Buildings (hereinafter "the Aggregate Buildings Act") and Articles 667 through 671 of the Civil Act applied mutatis mutandis by this Act. Accordingly, the defendant and the intervenor claimed that the apartment of this case transferred ownership through the conclusion of individual sales contract after objectively appraising the state, nature, etc. of each individual object between the defendant and the sectional owner of this case, who is the seller, after five years from the date of the inspection of use, and determining the sale price by objectively appraising the state, nature, etc. of each individual object, and the above individual sales contract does not fall under the concept of "sale" under Article 9 of the Aggregate Buildings Act. Thus, the issue of the seller's warranty liability and there is no

According to Article 9 of the Act on the Ownership and Management of Aggregate Buildings, Article 667 through Article 671 of the Civil Act shall apply mutatis mutandis to the warranty liability of the "person who has constructed and sold a aggregate building". The concept of "sale" is interpreted as including prior sale and ex post sale in the meaning that sections for exclusive use of an aggregate building are divided into several buyers, and there is no ground to regard the sale after lease as the concept of "sale" under Article 9 of the Act on the Ownership and Management of Aggregate Buildings. (2) According to the attached Table 1 of Article 3-3 of the Enforcement Rule of the Rental Housing Act which provides the criteria for calculating the sale conversion price of a rental house, the sale conversion price of an aggregate building shall be the cost of construction at the time of the initial recruitment of occupants, + self-interest costs - depreciation costs) and the appraisal price of an aggregate building, and the right to claim the sale of an aggregate building can not be determined to be more than the amount of depreciation costs of the rental period calculated at the time of the sale of the apartment building in the position of tenant.

B. Meanwhile, Article 46(1) of the amended Housing Act (amended by Act No. 7520, May 26, 2005; hereinafter the same) provides that "project owner shall be liable for repairing defects arising in multi-family housing as prescribed by the Housing Act, notwithstanding Article 9 of the Act on Ownership and Management of Condominium Buildings," and Article 46(3) of the Addenda of the amended Housing Act provides that "the above provision of Article 46 shall apply to warranty liability and defect repair of multi-family housing for which usage inspection or use approval has been obtained prior to the enforcement of the amended Housing Act," and Article 67 through 671 of the Addenda of the amended Housing Act (amended by Act No. 7502, May 26, 2005; hereinafter the amended Housing Act also becomes null and void by the amended Act No. 506, May 26, 2005; hereinafter the same shall apply)."

Therefore, the provisions of Article 6 of the Addenda to the amended Aggregate Buildings Act are still applied to the warranty liability and the repair of defects of the apartment house for which the inspection of use was made before May 26, 2005, notwithstanding the provisions of Article 6 of the Addenda to the amended Aggregate Buildings Act, so the contents and scope of the warranty liability are determined pursuant to Article 9 of the former Aggregate Buildings Act (amended by Act No. 5592 of Dec. 28, 1998) and Articles 667 through 671 of the Civil Act applied mutatis mutandis thereby.

3. Determination on this safety defense

The reasoning of the judgment of the first instance court is the same as that of the corresponding part of the judgment (No. 3, No. 19-4, No. 8). Thus, it is cited by the main sentence of Article 420 of the Civil Procedure Act

4. Judgment on the merits

(a) Occurrence of liability for damages;

According to the above facts, the defendant is liable to compensate the plaintiff who acquired the claim for damages in lieu of the defect repair pursuant to Article 9 (1) of the Aggregate Buildings Act as the seller of the apartment of this case, for the damages and the damages incurred therefrom in lieu of the defect repair.

B. Party’s assertion and determination as to the existence and scope of liability for damages

1) As to the assertion that there is no responsibility for defects arising before conversion for sale in lots

The defendant asserts that the selling price was determined by considering the defects existing in the apartment of this case at the time of conversion for sale in lots, and that the sectional owners of this case could not be held liable to the defendant for the defects that occurred before the conversion for sale in lots because they sold the apartment in lots as

In determining the pre-sale conversion price, it cannot be readily concluded that the price was determined by fully reflecting the defects of apartment due to defective construction in determining the pre-sale conversion price, and it cannot be said that the instant sectional owners entered into a sales contract with the intention to assume all the defects existing in the instant apartment and not to impose liability on them. Therefore, the Defendant’s assertion is without merit.

2) As to the assertion on the confirmation of the completion of the five-year defect repair

The defendant asserts that the plaintiff and the defendant concluded an agreement on November 2004 and agreed that the plaintiff will no longer dispute the plaintiff's repair of the defect that occurred until then. Since the defendant completed the repair of the defect in accordance with the above agreement and the plaintiff confirmed it and decided not to dispute the defect in the five-year period, the plaintiff cannot exercise the right to claim compensation in lieu of the repair of the defect within five years.

However, unless there are special circumstances, the right to a warranty of defects under Article 9 of the Aggregate Buildings Act belongs to the sectional owner of an aggregate building, and thus, it does not grant the council of occupants' representatives a right to claim compensation for damages in lieu of defect repair in addition to the right to claim for defect repair. Thus, even if there was an agreement between the plaintiff and the plaintiff as the defendant's argument that the plaintiff did not dispute about the five-year defect, unless there is any evidence that the plaintiff was delegated from the sectional owner at the time of the agreement to dispose of the defect repair in lieu of the right to claim

3) As to the exclusion period Do and argument

The defendant asserts that the apartment of this case was delivered to the sectional owner of this case who entered into a lease contract with the defendant around June 30, 1997 with the approval of use on June 30, 199, and that the lawsuit of this case was brought about ten years after the lapse of the period of exclusion.

Article 9 of the Aggregate Buildings Act provides that Articles 67 through 671 of the Civil Act shall apply mutatis mutandis to the warranty liability of the person who constructed and sold a building for the purpose of sale, and Article 671 (1) of the Civil Act provides that the contractor of the building and other structures created by stone, etc. shall continue to be liable for warranty for ten years after delivery of the defect of the object. According to its language, it is interpreted that the warranty liability under Article 9 of the Aggregate Buildings Act shall be calculated from the time when the buyer takes over the object of sale from the buyer. (2) In the situation of delivery to the pre-sale, the rental business operator is not in the position of the buyer and the tenant is not in the position of the buyer, and there is no room for the lessee to exercise the warranty liability under Article 9 of the Aggregate Buildings Act. (3) In the case of the aggregate building constructed for the purpose of sale, the warranty warranty period of each apartment can be calculated after the expiration of a considerable period after the construction, and in such case, it shall be interpreted that the buyer of the apartment building will continue to sell it for sale for ten years.

As seen earlier, the conversion of the apartment of this case into parcelling-out was made on September 1, 2002, and it is apparent that the lawsuit of this case was filed before the lapse of 10 years thereafter, and therefore, the defendant's assertion is without merit.

4) As to the assertion on the completion of extinctive prescription on the preceding and following defects in the year 1, 2, and 3

The defendant asserts that the extinctive prescription of the right to claim damages against defects before approval for use and in the year 1, 2, and 3 has already expired.

On the other hand, the right to claim damages in lieu of the defect repair is applied to the ten-year statute of limitations pursuant to Article 162(1) of the Civil Act, and the statute of limitations is effective from the time when the right can be exercised. As seen earlier, the sectional owners of this case can exercise the right to claim damages in lieu of the defect repair as provided in Article 9 of the Aggregate Buildings Act only when they purchased the apartment of this case around September 1, 2002, and therefore the statute of limitations begins from that time. Since it is apparent that the lawsuit of this case was filed before 10 years elapse from that time, the defendant's assertion is without merit.

5) As to the parties’ assertion on the scope of defect repair

(A) the entire Do governor;

The plaintiff asserts that, on the grounds of aesthetic view, the apartment of this case should be compensated for rupture, etc., and the entire rupture should be presented.

According to the results of the above appraisal and the fact-finding about the appraiser, in the case of the apartment of this case where the part of the apartment of this case after repairing heating, etc., the area is less than 4.4% of the total floor area of 1194.09 square meters and only 1194.09 square meters, and in the case of the partial gate, the total 9,184,000 square meters are required as per time when the entire gate is held, compared to the expenses of KRW 9,184,00, compared to the expenses of KRW 9,184,00, the expenses of KRW 96,412,00 as per time are required. Thus, in this case where there are no special circumstances to deem otherwise, the entire Do governor

(b)The profit rate;

The plaintiff asserts that in calculating the cost of repairing the defects of the apartment of this case, 15%, which is the highest profit rate prescribed in the criteria for calculating the profit rate shall be applied.

Article 21 of the "Standards for Preparing Budget Price", which provides for the criteria to be applied in the preparation of the estimated price based on cost calculation, provides that "profit shall mean profit, and shall not be appropriated in excess of 15% in the aggregate of construction cost, labor cost, expenses, and general management expenses (in this case, royalties and external processing expenses shall be excluded). According to the results of fact-finding on the appraiser, the difference calculation item due to non-construction and non-construction other than the items that require or interfere with the actual remuneration shall be included in the interest rate. In this case, the profit rate is reasonable, and in this case, the determination of such appraiser is not unreasonable in light of the scale and difficulty of the construction, and the current construction competition situation, so it is reasonable to apply 10% profit rate in calculating the cost for repairing the defects of the apartment of this case.

(c)the cost of the temporary construction, the cost of the processing on the surface of fracks section 2, and the cost of arranging the site;

The Plaintiff asserts that the cost of the temporary construction should be included in the cost of repairing defects of KRW 78,00, KRW 33,002,00, and KRW 8,373,000, in the cost of the site adjustment, based on the rupture of the rupture of the rupture.

In light of the above appraisal result, the appraiser separately classified the costs of the plaintiff's assertion as "construction costs based on the plaintiff's assertion" when calculating the total repair costs incurred in repairing defects of the apartment of this case. In light of this, it is difficult to consider additional costs of the plaintiff's assertion in addition to the repair cost calculated by the appraiser with the repair cost of the apartment of this case, and there is no other evidence to acknowledge this differently. Thus, the plaintiff's assertion is without

D) Stop fever

The defendant asserts to the effect that the cracks of not more than 0.3mm in width will inevitably occur due to the material characteristics of concrete, and thus, it does not constitute a defect that requires defect repairs.

Even if the difference in temperature by season is less than 0.3mm due to the characteristics of the Republic of Korea, even though the difference in temperature by season is less than 0.3mm, it may hinder the function and safety of the structure by reducing the inner strength of the structure, such as reducing the corrosion of the structure structure as the steel spreads due to the infiltration of carbon dioxide or rainwater, etc. Therefore, even though it is inevitable to generate crack due to the characteristics of concrete, it is not reasonable to uniformly exclude the crack below 0.3mm generated in the apartment of this case from the object of defect repair. Accordingly, this part of the defendant's assertion is without merit.

(e) argument that consideration is given to award rates;

The defendant asserts that the repair cost of this case should be reduced by the amount calculated by multiplying the repair cost of this case finally calculated by the bid price ratio, because the general bid price ratio of construction works between 1 billion and 5 billion won after July 31, 2000 is 86.75% since then after July 31, 200.

In light of the fact that construction works for repairing defects of apartment buildings should be conducted in consideration of the existing facilities, etc. in the state that occupants have already completed construction works and reside therein, and the bid price rate is the value generated by the bid company's actual competition rate as variables, and it is not an objective and reasonable construction cost, and thus it cannot be considered as the standard for calculating the cost for repairing defects of apartment buildings, etc., it cannot be deemed that the average bid price rate of the procuring company should be applied when calculating the cost for repairing defects of apartment buildings of this case.

F) Sub-decisions

Therefore, since both the Plaintiff and the Defendant’s assertion on the scope of defect repair and the calculation of its cost different from the opinion of the first instance trial appraiser are without merit, the cost of defect repair of the apartment of this case is KRW 44,715,00 (=construction cost of section for exclusive use + KRW 171,414,00 + construction cost of section for common use + KRW 273,301,00) as appraised by the first instance trial appraiser.

C. Limitation on liability

On the other hand, the apartment of this case, which had undergone a pre-use inspection on June 30, 197, could have naturally occurring after the lapse of 12 years from the date of February 2010 when the appraisal of the first instance court had been implemented. The defendant converted the apartment of this case into the sale on September 2002 after the lapse of five years from the date of the pre-use inspection. The sale price was determined by considering depreciation up to the time of the pre-use inspection, and the sectional owners of the apartment of this case were to purchase the apartment of this case at the same price, the defendant decided to limit the amount of damages to the plaintiff, taking into account that the owners of the apartment of this case were to purchase the apartment of this case at the same price. The ratio above shall be 70%

(d) Calculation;

(i) Common areas;

273,301,00 won X Transfer Ratio 83.57%x ratio 70% = 159,878,351 won

(ii)the section for exclusive use;

171,414,00 wonx ratio of 70% = 119,989,800 won

3) Total amount: 279,868,151 won;

5. Conclusion

If so, the defendant is liable to pay to the plaintiff 279,868,151 won and 101,00,000 won from August 28, 2008 following the day after the copy of the complaint of this case was served on the defendant, and to pay damages for delay calculated at each rate of 20% per annum as stipulated in the Civil Act from July 14, 2010 to June 9, 201, which is the day following the day when the copy of the application for modification of the purport of this case and the cause of the claim of this case was served on the defendant.

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claims are dismissed for lack of reason. Since the judgment of the court of first instance is unfair with some different conclusions, part of the plaintiff's appeal is accepted, and the part against the plaintiff corresponding to the above order of payment among the judgment of the court of first instance is revoked, and the payment of the above money is ordered to the defendant. The plaintiff's remaining appeal is dismissed for lack of reason. It is so decided

[Attachment]

Judges Kim Chang-ju (Presiding Judge)