[1] Acts and subordinate statutes applicable to the warranty liability of a collective housing subject to a pre-use inspection or use approval prior to May 26, 2005, when Article 6 of the Addenda to the Act on the Ownership and Management of Aggregate Buildings and the amended Aggregate Buildings were enforced (=Article 9(1) of the former Act on the Ownership and Management of Aggregate Buildings and Articles 67 through 671 of the Civil Act applicable mutatis mutandis thereto)

[2] The legal nature of the warranty liability period under Articles 667 through 671 of the Civil Code (=the exclusion period) and the warranty period against the concrete structures (=the warranty period of ten years after delivery)

[3] Whether Article 9 of the former Act on Ownership and Management of Condominium Buildings and Articles 667 through 671 of the Civil Act applied mutatis mutandis by Article 9 of the said Act shall apply to the warranty liability and the defect repair of a rental apartment converted for sale in lots (affirmative)

[1] Article 9(1) of the former Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 7502 of May 26, 2005), Article 6 of the Addenda to the Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 7502 of April 10, 1984), Article 46 of the former Housing Act (amended by Act No. 7502 of May 26, 2005), Article 46 of the former Housing Act (amended by Act No. 7600 of July 13, 2005), Article 67, 68, 669, 670, and 671 of the Civil Act / [2] Article 60 of the former Act on the Ownership and Management of Aggregate Buildings, Article 606 of the Civil Act (amended by Act No. 7502 of May 26, 2005), Article 679 of the former Act, Article 679 of the Civil Act / [6067

[1] Supreme Court Decision 2008Da12439 Decided December 11, 2008 (Gong2009Sang, 24) / [2] Supreme Court Decision 2008Da88368 Decided January 14, 2010, Supreme Court Decision 2009Da82060 Decided April 14, 201

The council of occupants' representatives of Seongdong-dong Apartment (Law Firm Shin, Attorneys Lee Dong-young et al., Counsel for the plaintiff-appellant)

Korea Land and Housing Corporation (Attorney Kim Jong-soo, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2010Na99318 decided May 17, 2011

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1, 3, and 4

A. Article 9(1) of the former Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 7502, May 26, 2005; hereinafter “Act on the Ownership and Management of Aggregate Buildings”) provides that the provisions of Articles 67 through 671 of the Civil Act shall apply mutatis mutandis to the warranty liability of a person who constructed and sells an aggregate building. The proviso of Article 671(1) of the Civil Act provides that the contractor of a building constructed with stone, stone, brick and other similar materials shall be liable for warranty liability for 10 years after delivery of the defect. Meanwhile, Article 65(1) of the Addenda of the Housing Act (amended by Act No. 7502, May 26, 2005; hereinafter “Act on the Ownership and Management of Aggregate Buildings”) which was amended by Act No. 1065, May 26, 2005; Article 76(1) of the Housing Act (amended by Act No. 976, May 26, 2005>

Furthermore, examining whether Article 9(1) of the former Aggregate Buildings Act and Articles 667 through 671 of the Civil Act applicable mutatis mutandis by Article 9(1) of the same Act and Article 671 of the same Act can be applied to an apartment building constructed as a leased apartment and leased for five years as in the case of the apartment building in this case, the contents of the warranty liability should be clearly defined by applying the provisions on the warranty liability of the contractor under the Civil Act to the owner's warranty liability of the apartment building in order to protect the building owner who constructed and sold the apartment building in a fraudulent manner, and the warranty warranty right under the above provisions belongs to the current owner of the apartment building, even if the old level of the apartment house is already assessed, it cannot be concluded that its price is determined by reflecting all defects in the apartment building caused by defective construction even if it is judged to have been determined. However, it is reasonable to view that the tenant's right to claim defect repairs and the right to lease the apartment building in the status of lessee is the same as that of the owner under Article 16(1) of the former Aggregate Buildings Act.

B. The court below acknowledged the fact that the Korea National Housing Corporation newly built the apartment of this case and leased it as the leased house after obtaining approval for use on July 1, 1999, but sold it in lots from November 2, 2004 to December 31, 2004, and rejected the defendant's assertion that the defendant, who comprehensively succeeded to the rights and obligations of the Korea National Housing Corporation, is liable for damages in lieu of the repair of defects existing in the apartment of this case to the sectional owners who purchased the apartment of this case under Article 9 (1) of the former Aggregate Buildings Act and Articles 667 through 671 of the Civil Act applicable mutatis mutandis thereto, and that the lawsuit was filed after the expiration of the exclusion period, on the grounds that the proviso of Article 671 (1) of the Civil Act is applied to concrete structures such as the apartment of this case and the defect warranty period was ten years after delivery, and that the lawsuit was filed on July 1, 2009 (the approval date of the use of this case of this case).

C. In light of the aforementioned legal principles and records, such judgment of the court below is just. Contrary to the allegations in the grounds of appeal, there are no errors by misapprehending the legal principles on Article 9(1) of the former Aggregate Buildings Act and related provisions of the Rental Housing Act, by misapprehending the legal principles on the scope of defects and the warranty liability period, by misapprehending the legal principles on the Acts and subordinate statutes applicable to the scope of defects and the warranty liability period of defects under the main sentence and proviso of Article 671(1) of the Civil Act, or by failing to exhaust all necessary deliberations, or by failing to exhaust all necessary deliberations, there is no need to change the opinion of the Supreme Court that the contractor’s warranty liability period is ten years after the delivery of the contractor’s concrete structure,

2. Regarding ground of appeal No. 2

A review of the reasoning of the judgment below and the record reveals the following facts. In other words, around June 2006, the plaintiff prepared a written agreement with the defendant to faithfully implement repair works related to the conversion of the apartment of this case into parcelling-out. The contents of the agreement include: "The repair works for six items in the agreement shall be implemented in accordance with the defendant's design and trial, and shall be paid by the defendant in calculating the cost of the repair, and shall be paid by the plaintiff, and the defendant shall be recognized that all matters related to the conversion into parcelling-out of the apartment of this case related to the conversion into parcelling-out of the apartment of this case have been completed, and shall not be required by the defendant in relation to the repair." The plaintiff received a payment of KRW 340 million for the defect repair cost calculated by the defendant from the defendant around August 25, 2006, and let ○○○ Industries (non-party) and Seowon Construction Co.

In light of the above facts, in order to claim that the plaintiff did not require the repair of defects any longer, the defendant must prove that the above six items were completed. However, it is difficult to deem that the defendant simply paid 340 million won for the repair of defects calculated by the design and the trial prepared by the defendant to the plaintiff, and that all such remuneration was completed. In addition, according to the records, some occupants of the apartment of this case prepared and submitted the "written consent" before and after the preparation of the written agreement. However, in light of the form and content of the written consent, it is difficult to view that the tenant was granted the plaintiff as the council of occupants' representatives the right to disposition to waive the right to claim the repair of defects or to waive the future right to claim the repair of defects without any condition, even though the defect repair was not completed.

In the same purport, the court below’s rejection of the defendant’s defense that the lawsuit in this case was filed against the non-committee agreement and thus unlawful as there is no benefit in the protection of rights is just and acceptable. Contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles regarding the interpretation of a written agreement and the liability for warranty, by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by failing to exhaust all necessary deliberations, etc.

3. As to grounds of appeal Nos. 5 and 6

The court below acknowledged the fact that multiple cracks have occurred to the section for common use and section for exclusive use of the apartment in this case based on its adopted evidence, and rejected the defendant's assertion that even if the width of the cracks does not exceed 0.3mm from the cracks does not exceed 0.3mm, it may hinder the function and stability of the structure, such as reducing the inner strength of the structure due to the corrosion of rainwater, etc., and if the cracks generated are left unattended without any repair measure, it may increase the frack width, thereby promoting the heat and deterioration, causing problems in the deterioration of function or durability, and if concrete external walls generated by fracks are exposed, it cannot be viewed as a defect in aesthetic view.

In light of the records, the above measures of the court below are just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles regarding the requirements for establishing warranty liability under Article 9 of the Aggregate Buildings Act, or by exceeding the bounds of the principle of free evaluation of evidence or by failing to exhaust all necessary deliberations

In addition, in light of the records, the court below's decision that the repair of the rupture of the outer wall of the apartment of this case was reasonable and reasonable after the execution of a part of the rupture rupture rupture rupture rupture rupture rupture rupture rupture rupture rupture rupture rupture rupture rupture rupture rupture s

This part of the grounds of appeal is without merit.

4. Conclusion

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

Justices Jeon Soo-ahn (Presiding Justice)