[1] In a case where a written form of a preparatory document contains the intent of modifying the purport of the claim, whether it can be deemed that there has been a modification of the purport of the claim in the written form (affirmative)

[2] The legal nature of the contractor's warranty liability period under Articles 667 through 671 of the Civil Code, which is applied mutatis mutandis by Article 9 of the Act on the Ownership and Management of Aggregate Buildings (=the exclusion period)

[3] Whether the council of occupants' representatives of multi-family housing has the right to delay the defects under Article 9 of the Act on Ownership and Management of Condominium Buildings in addition to the right to request defect repair against the business entity under the Housing Act and its Enforcement Decree (negative)

[1] Articles 262 and 274 of the Civil Procedure Act / [2] Article 9 of the Act on the Ownership and Management of Aggregate Buildings, Articles 667 and 671 of the Civil Act / [3] Article 9 of the Act on the Ownership and Management of Aggregate Buildings, Article 46 of the Housing Act, Article 59 (2) of the Enforcement Decree of the Housing Act

[2] Supreme Court Decision 2000Da26425 decided Jan. 10, 2003 (Gong2003Sang, 561) Supreme Court Decision 2001Da24891 decided Jan. 27, 2004 (Gong2004Sang, 430)

The council of occupants' representatives (Attorney Park Hong-soo, Counsel for the plaintiff-appellant)

KS Construction Co., Ltd. (Law Firm Democratic, Attorneys Yoon Jae-sik et al., Counsel for the plaintiff-appellant)

Busan High Court Decision 2005Na5270 decided October 17, 2008

The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate brief filed after the deadline).

1. Regarding ground of appeal No. 1

Article 262(2) of the Civil Procedure Act provides that an amendment of the purport of a claim shall be made in writing (Article 262(2) of the Civil Procedure Act). However, for the purpose of amending the purport of the claim, a document with the title or form of “application for amendment of the purport of the claim” shall not necessarily be required. If, even according to the form of a preparatory document, the content of the written application includes the intent to modify the purport of the claim in light of

According to the records, the plaintiff filed the lawsuit of this case under the premise that he has a claim for damages in lieu of defect repair under Article 9 of the Aggregate Buildings Act, and that "the defendant is obligated to pay the above acquisition amount to the plaintiff, since he received a claim for damages in lieu of defect repair under Article 9 of the Aggregate Buildings Act, even if it is not so, from the sectional owners of the apartment of this case, since he received a claim for damages in lieu of defect repair under Article 9 of the Aggregate Buildings Act," it can be known that he submitted the briefs to the court below on August 25, 2005, and stated the above briefs on September 1 of the same year. In light of the progress of the lawsuit of this case, it is evident that the above briefs are the contents that the plaintiff added the claim for acquisition amount as a preliminary cause while maintaining the previous purport of the claim. Thus, the above briefs should also serve as the claim for damages added

Furthermore, even if the Plaintiff did not raise an objection in the form of an application for modification of the purport of the claim, the record reveals that the Defendant did not raise an objection against it, and that the Plaintiff submitted the documents for reference as of October 15, 2008 on the premise that the cause of the claim was changed to the preparatory documents as of August 25, 2005. Thus, the error is cured due to the Defendant’s loss of the right to ask questions.

Therefore, the court below's judgment that held the above preparatory document as an additional claim, and that the claim for the takeover amount included in the preparatory document was not erroneous in the violation of the disposition right, as otherwise alleged in the ground of appeal.

2. Regarding ground of appeal No. 2

A. The judgment of the court below

The court below rejected the plaintiff's claim on July 30, 202 in lieu of the defect repair from the sectional owner of the apartment of this case for the compensation of damages against the defendant for the preliminary claim of this case where the plaintiff transferred the right of compensation in lieu of the defect repair, and the compensation for damages in lieu thereof is not necessarily presumed to be a kind of factual act, but it is possible to exercise the right by proxy. The plaintiff's lawsuit of this case raised by the plaintiff is filed to a certain extent after the investigation of the defect by a specialized agency. The council of occupants' representatives, regardless of its name and formal members, functions as the management body provided in the Act on the Ownership and Management of Aggregate Buildings (hereinafter "the Act on the Ownership and Management of Aggregate Buildings") in substance, and can be viewed as having the status of representative against the sectional owner in relation to the defect repair of the apartment of this case. On the other hand, the plaintiff filed the lawsuit of this case on July 30, 2002, and claimed compensation for damages in lieu of the plaintiff's claim for the defect repair within the period of exercise.

B. However, we cannot accept the judgment of the court below for the following reasons.

The warranty liability period of a contractor under Articles 667 through 671 of the Civil Act, which are applied mutatis mutandis by Article 9 of the Multi-Family Building Act, is an exclusion period, which is a judicial or extra-judicial exercise period (see Supreme Court Decision 2001Da24891, Jan. 27, 2004). The warranty liability period of a contractor is ten years after delivery, since the warranty right of defects is naturally extinguished (see Supreme Court Decision 2000Da26425, Jan. 10, 200).

Unless there are special circumstances, the right to demand a repair of defects under Article 9 of the Aggregate Buildings Act belongs to a sectional owner of an aggregate building, and on the other hand, Article 46 of the Housing Act and Article 59 (2) of the Enforcement Decree of the Housing Act grant the council of occupants' representatives the right to demand a repair of defects to the business owner of an apartment building. However, the purpose of this right is to determine the procedure, method, period, etc. of the repair of defects of an apartment building and to set the standards for prompt repair of defects as a warranty bond in an administrative aspect, and it cannot be deemed that the council of occupants' representatives grants a warranty warranty right to the business owner in addition to the right to demand a repair of defects. Therefore, the council of occupants' representatives can only claim a repair of defects against the business owner under the provisions of the Housing Act and the Enforcement Decree of the Housing Act.

According to the facts acknowledged by the court below, under the premise that the plaintiff, the council of occupants' representatives of the apartment of this case, has the above right to claim damages under Article 9 of the Aggregate Buildings Act, on July 30, 2002, under the premise that the plaintiff, the council of occupants' representatives of the apartment of this case, had filed the lawsuit of this case on July 30, 2002, and had been pending in the court below, transferred the above right to claim damages from the owner of the apartment of this case, and submitted a preparatory document to add the claim for damages due to the above assignment of claim as a preliminary claim

Therefore, the lawsuit of this case filed at the beginning by the plaintiff cannot be deemed to have exercised the above right to claim damages because it is limited to a person without the right, and the court below cannot be deemed to have exercised the above right to claim damages on the sole basis of the facts required by the court below. Ultimately, barring any special circumstance such as the sectional owners separately exercised the above right to claim damages, the above right to claim damages should have been exercised only on August 25, 2005, which submitted a preparatory document to the effect that the plaintiff seeks the claim for the amount of the acquisition by transfer (see Supreme Court Decision 2008Da48490, Dec. 24, 2008). Therefore, if the apartment of this case was not delivered within 10 years retroactively from August 25, 2005, unless it was delivered within 10 years retroactively from the delivery date of the apartment of this case, the defective right to claim damages on the apartment of this case has expired due to the expiration of the exclusion period. The court below should have judged whether the defendant's exclusion period and defense had

As such, the court below erred by misapprehending the legal principles on the attribution of the right to claim damages, the exercise of the right to claim damages, and the observance of the exclusion period under Article 9 of the Aggregate Buildings Act, and by failing to examine the time of delivery of the apartment in this case, which affected the conclusion

3. Conclusion

Therefore, without examining the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)