[1] Where a law, which was enforced and applied at the time of the occurrence of a warranty bond, is amended or amended, or the applicable law becomes different, the law that sets the period and period of extinctive prescription of the claim

[2] The case holding that the statute of limitations for five years from the expiry date of guarantee period under the former Housing Construction Promotion Act shall apply to the claim for the warranty bond which was incurred before February 28, 1999 due to the amendment of the former Housing Construction Promotion Act before the deletion of Article 47-12 (2) of the same Act

[3] Whether Article 9 of the Act on the Ownership and Management of Aggregate Buildings applies to cases where the council of occupants' representatives of multi-family housing exercises the right to claim for the repair of defects or the right to claim for the repair of defects pursuant to the duty of the housing project mutual aid association

[4] The legal nature of the council of occupants' representatives of collective housing organized under the former Housing Construction Promotion Act and the former Decree on the Management of Collective Housing, and the relationship between the council of occupants' representatives

[1] Article 47-12(2) of the former Housing Construction Promotion Act (amended by Act No. 5908 of Feb. 8, 199); Article 1 of the Addenda of the former Housing Construction Promotion Act (amended by Act No. 6916 of May 29, 2003) / [2] Article 47-12(2) of the former Housing Construction Promotion Act (amended by Act No. 5908 of Feb. 8, 1999); Article 1 of the Addenda of the former Housing Construction Promotion Act (amended by Act No. 6916 of May 29, 200) (see current Article 97 of the Housing Construction Promotion Act); Article 971 of the Civil Act; Article 98 of the former Enforcement Decree of the Housing Construction Promotion Act (amended by Act No. 5908 of Feb. 8, 199); Article 19 of the former Enforcement Decree of the Housing Construction Promotion Act (amended by Presidential Decree No. 9701 of Feb. 9, 19999) / [3]

[1] [2] [3] Supreme Court Decision 2008Da76020 Decided March 12, 2009 / [1] Supreme Court Decision 96Da2453 Decided June 28, 1996 / [3] Supreme Court Decision 2001Da47733 Decided February 11, 2003 (Gong2003Sang, 773), Supreme Court Decision 2001Da24891 Decided January 27, 2004 (Gong2004Da7616 Decided April 9, 200) / [4] Supreme Court Decision 2002Da73333 Decided January 26, 2007

The council of occupants' representatives of Gyeongsan-2nd National Assembly (Attorney Han-ho, Counsel for the plaintiff-appellant)

Korea Housing Guarantee Co., Ltd. (Law Firm Daegu, Attorneys Southern-jin et al., Counsel for the defendant-appellant)

Daegu High Court Decision 2005Na3794 Decided October 16, 2008

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

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

A. As to the completion of the extinctive prescription

The period of extinctive prescription and initial date of the security deposit for repairing defects shall be determined by the law that had been enforced and applied at the time of the occurrence of the claim, and it shall not be determined by the amended Act, the new Act, or the newly applicable Act on the ground that the new Act has been amended or amended or the new Act has changed (Supreme Court Decision 96Da2453 delivered on June 28, 1996).

Article 47-12(2) of the former Housing Construction Promotion Act (amended by Act No. 5908, Feb. 8, 1999; hereinafter the same) which was enforced and applied at the time of entering into the instant guarantee agreement, provides, “The right of a guarantee creditor to a security deposit held under a contract for the repair of defects shall be extinguished by extinctive prescription unless it is exercised for five years from the expiration date of the guarantee period.” However, upon the amendment of the former Housing Construction Promotion Act by Act No. 5908, Feb. 8, 1999, the said provision was deleted, and the amended Housing Construction Promotion Act was enforced on March 1, 199 (Article 1 of the Addenda).

In light of the above legal principles, the period of extinctive prescription of the Plaintiff’s claim for the warranty bond that occurred until February 28, 1999, which was enforced and applied by Article 47-12(2) of the former Housing Construction Promotion Act, is five years in accordance with the above provision, and the initial date of the extinctive prescription is the expiration date of the warranty period regardless of the date of the occurrence of

According to the reasoning of the judgment below, after compiling the adopted evidence, the court below acknowledged the facts as stated in its reasoning. According to Article 47-12 (2) of the former Housing Construction Promotion Act which was enforced at the time of entering into each guarantee contract of this case with respect to the claim for the deposit for defects within the three years of this case, the right to the deposit against the Housing Financial Cooperative shall be extinguished due to the prescription unless the guarantee creditor exercises his right for five years from the expiration date of the guarantee period. Even if the defect within the three years of this case occurred within the period of the defect repair liability, if the defect within three years from November 25, 1995 was discovered within the period of the defect repair liability, the period of the defect repair liability expires on November 24, 1998, and since the prescription period of the defect repair liability expires on November 24, 2003 after the lapse of five years from the date of the usage inspection of the apartment of this case, the court below did not err in the misapprehension of legal principles as to the claim for the defect repair liability within the three years of this case and the last 24 years of this case.

B. As to the application of the Act on the Ownership and Management of Aggregate Buildings

Under Article 9 of the Act on the Ownership and Management of Aggregate Buildings (hereinafter "the Aggregate Buildings Act"), the right to demand a warranty for defects under Article 9 of the Act on the Ownership and Management of Aggregate Buildings belongs to a sectional owner of an aggregate building (see Supreme Court Decision 2001Da47733, Feb. 11, 2003), and the former Housing Construction Promotion Act and the former Decree on the Management of Collective Housing (amended by Presidential Decree No. 16069, Dec. 31, 1998; hereinafter the same) grant the council of occupants' representatives the right to demand a warranty in accordance with the contents and the type of defects of the construction to the project owner of an apartment house, but the purpose is to set the criteria for prompt repair of defects as a warranty bond by determining the procedure, method and period of defect repair of an apartment house at an administrative level and to make it possible to promptly repair defects as a warranty bond (see Supreme Court Decision 2003Da7616, Apr. 9, 2004).

Therefore, we cannot accept the allegation in the grounds of appeal that the 10-year limitation period should be applied under Article 9 of the Aggregate Buildings Act with respect to the right to claim repair of defects arising from the apartment of this case.

C. As to the violation of the principle of pleading

The argument on how the extinctive prescription period of a certain right becomes effective is merely a mere legal argument, and the court can decide ex officio without the principle of pleading (see Supreme Court Decision 2006Da70929, Mar. 27, 2008, etc.).

The argument in the grounds of appeal that the court below’s application of the five-year extinctive prescription under Article 47-12(2) of the former Housing Construction Promotion Act violates the principle of pleading cannot be accepted.

D. As to whether the defendant's liability for warranty bond has been approved

Approval, which is a ground for interruption of extinctive prescription, is established when the obligor, who is a party to the interruption of extinctive prescription, expresses that the obligor is aware of the existence of the right to the obligor or his/her agent, who is a party to the interruption of extinctive prescription benefits, and the method of indication does not require any form, and it is sufficient if the indication is made in such a way that the obligor is able to conceal the obligor by way of indicating that the obligor is aware of the existence and amount of the obligation on the premise that the obligor is aware of the existence and amount of the obligation (see Supreme Court Decision 2006Da22852, 22869, Sept. 22, 2006).

Even if it is assumed that the defect within the three years of this case was found within the period of defect repair liability, the court below held that the defendant approved the defect repair liability for the defect repair of 224 defects (the 53 defects in the common use area, 171 defects) that the plaintiff requested the defendant to repair (hereinafter "the repair request of this case") around October 13, 1998, after conducting an on-site investigation and around December 24, 1998, the defendant recognized the warranty liability for the defect repair of 98 defects (the 18 defects in the common use area, 80 cases in exclusive use area) among them (hereinafter "approval for repair of this case"). If the repair approval of this case among the defects within the three years of this case, it can be deemed that the defendant approved the defect repair liability of this case, but it cannot be deemed that the defendant approved the defect repair liability for other defects, and there is no error in the misapprehension of legal principles and records as alleged in the ground of appeal.

2. Regarding ground of appeal No. 2

If the authenticity of a disposal document is recognized, the court shall, in principle, recognize the existence and content of the declaration of intent in accordance with the language and text stated in the disposal document, unless there is any clear and acceptable reflective evidence that denies the contents of the statement. In the event that there is any difference between the parties about the interpretation of a contract and the interpretation of the intent of the parties expressed in the disposal document is at issue, the court shall reasonably interpret it in accordance with logical and empirical rules by comprehensively taking into account the contents of the text, the motive and background of such agreement, the purpose to be achieved by the agreement, the parties’ genuine intent, etc. (see Supreme Court Decision 2006Da15816, Sept. 2

In addition, since the council of occupants' representatives of collective housing constituted under the former Housing Construction Promotion Act and the former Decree on the Management of Collective Housing shall be deemed an unincorporated association, the right of the council of occupants' representatives to claim the repair of defects against the project undertaker is a property right belonging to the quasi-general property of the members of the council of occupants' representatives (see Supreme Court Decision 2002Da7333, Jan.

According to the reasoning of the judgment below, the court below acknowledged facts as stated in its reasoning based on the adopted evidence, and found that at the time of the preparation of the consent form, the plaintiff renounced all the claims for the warranty bond against the defects, which were omitted or poorly repaired, and the council of occupants' representatives may waive the claims for the warranty bond against the defendant by its resolution even without the delegation of the occupants. In light of the above legal principles and records, the above judgment of the court below is just and acceptable, and there is no error of law such as misunderstanding of legal principles as argued in the Grounds for Appeal.

3. 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 on the bench.

Justices Ahn Dai-hee (Presiding Justice)