Where the purpose of contract can not be achieved due to defects in completed condominium buildings, whether the buyer may cancel the sale contract for such reasons (affirmative)

Article 9 (1) of the Multi-Unit Residential Building Act provides that the provisions of Articles 67 through 671 of the Civil Act concerning a contractor shall apply mutatis mutandis to the warranty liability of a person who constructed and sold a building under the above Act shall apply mutatis mutandis to the seller's warranty liability. In order to induce the seller or the seller of an aggregate building to create a solid building and to protect the buyer of an aggregate building which is poorly constructed, the provisions concerning the buyer's warranty liability under the Civil Act shall apply mutatis mutandis to the seller's warranty liability, and it is mandatory to clarify the contents of the warranty liability of the seller, and it is not the contractor's warranty liability under the Civil Act or the legal nature of the seller's warranty liability. In the case of an aggregate building on a general basis, the buyer's warranty need to protect the buyer as an economically weak compared to the large-scale seller's warranty, even after the cancellation of the sale contract after the completion of the aggregate building, so the seller is not required to remove the building by cancellation of the contract, and therefore, the seller can be applied mutatis mutandis to the sale contract.

Article 68 of the Civil Code, Article 9(1) of the Multi-Unit Residential Building Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Plaintiff 1 and one other (Law Firm Asian, Attorneys Park Woo-soo et al., Counsel for the plaintiff-appellant)

Seongdong Construction Co., Ltd.

Seoul High Court Decision 2001Na26271 delivered on December 6, 2001

Of the part of the judgment of the court below as to damages for delay, the part against the plaintiff 1 as to 62,436,00 won, 6% per annum from June 13, 200 to May 31, 200, 200 as to 59,298,000 won, and 20% per annum from June 13, 200 to May 31, 200, and the part against the defendant exceeding the amount with 20% per annum from the next day to the date of full payment, is reversed, and the part of the judgment of the court of first instance is revoked, and the plaintiffs' claim corresponding thereto is dismissed. All of the remaining appeals

1. We examine the grounds of appeal.

A. Whether the probative value of the disposal document and the other party of the contract are misunderstanding legal principles

According to the reasoning of the judgment below, the court below determined that the defendant is in the position of the actual seller beyond the status of the contractor and the supply agent, in light of the fact that the defendant has the right to cancel the contract, while the defendant has the right to cancel the contract at the time of cancelling the contract, the defendant bears the responsibility to return the sale price at the time of cancelling the contract, and the registration of preservation of ownership on the commercial

Examining the relevant evidence in light of the records, the above recognition and judgment of the court below is acceptable, and on the other hand, it means that the act of law to prove the disposal document was conducted by the document (see Supreme Court Decision 97Da2986 delivered on May 30, 1997). Thus, the sale agency contract of this case cannot be deemed as a disposal document as to the sales contract of this case as alleged in the ground of appeal, and even if the court below did not employ it as evidence, it is not erroneous in the misapprehension of legal principles as to the probative value of disposal document as otherwise alleged in the ground

In addition, as long as the defendant is the buyer, the plaintiffs as the buyer must express their intent to cancel the sales contract against the defendant, the decision of the court below to the same purport is just, and there is no violation of law as to the other party of the termination of contract as otherwise alleged in

B. Whether there is a misapprehension of the legal principle on the cancellation of sales contract

Article 9 (1) of the Multi-unit Building Act (hereinafter referred to as the "multi-unit Building Act") provides that the provisions of Articles 667 through 671 of the Civil Act concerning the contractor shall apply mutatis mutandis to the warranty liability of the person who constructed and sold the building under the above Act, and Article 668 of the Civil Act provides that the contractor may cancel the contract when the contractor can not achieve the purpose of the contract due to the defect of the completed object, but the same shall not apply to the building or other structure of the land.

Article 9 of the Aggregate Buildings Act provides that the provisions of the Civil Act concerning the warranty liability of a contractor shall apply mutatis mutandis to the warranty liability of a seller of an aggregate building in order to induce a seller or a seller of an aggregate building to build a solid building, and to further protect the owner of an defective building, to clarify the contents of warranty liability of a seller, while it is mandatory (see Supreme Court Decision 2001Da47733, Feb. 11, 2003). The liability borne by a seller is a contractor's warranty liability under the Civil Act, and the responsibility is not based on the sales contract, or the legal nature of the sales contract is not a contract.

On the other hand, in the case of a large-scale multi-unit apartment building, there is a high need to protect buyers as economically weak compared to large-scale construction companies, and even if the individual sales contract is cancelled after the completion of the multi-unit apartment building, the seller has the right to use the site of the multi-unit building, so there is no problem of removing the building by termination of the contract, and the seller can achieve the purpose of the construction of the multi-unit building sufficiently by concluding a new sales contract with a third party. In light of the fact that the proviso of Article 68 of the Civil Act is not applied mutatis mutandis to the sales contract of the multi-unit apartment to which Article 9 (1) of the Multi-unit Building Act is applied, and therefore, the buyer can cancel the sales contract if the purpose of the contract can not be achieved

The decision of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the cancellation of a contract for the sale of aggregate buildings or aggregate buildings.

2. Ex officio determination on damages for delay

On April 24, 2003, Article 3 (1) of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings (amended by Act No. 6868 of May 10, 2003) provides that "The interest rate prescribed by Presidential Decree" in the main sentence of Article 3 (1) of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings (amended by Act No. 6868 of May 10, 2003) was unconstitutional by the Constitutional Court. Accordingly, the amended provision of the Act and the main sentence of Article 3 (1) of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings (amended by Presidential Decree No. 17981 of May 29, 200) shall be 20 per annum for a case pending at the court at the time of the enforcement of the above Act. Thus, the judgment of the court below which cited damages for delay with 25 percent per annum by applying the above provisions of the Act before and after June 13, 2000.

Therefore, the part of the judgment of the court below concerning damages for delay is about 62,436,00 won against plaintiff 1 and 2 about 59,29,298,000 won from June 13, 200 to May 31, 200, respectively. The part against the defendant is about 6% per annum under the Commercial Act [the right to claim for the return of sale price that the plaintiffs acquired by the cancellation of the contract for sale in this case concluded by the defendant, which is a merchant, is a commercial claim (refer to Supreme Court Decisions 93Da21569 delivered on September 14, 1993, 9Da10189 delivered on October 27, 200). The part against which the damages for delay exceeds the rate of 20% per annum under the revised Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, and this part against the defendant is sufficient to be judged directly, and the court is dismissed as the remaining part of the judgment of the court below and the appeal is dismissed.

Justices Shin Shin-chul (Presiding Justice)