Claim for a defect and solatium of a building newly built by a contractor in a new building construction contract

In general, if there is a defect in a newly built building by the contractor in the contract for new construction of a building, the mental suffering that the contractor has received shall be deemed to have been recovered due to the repair of the defect or the compensation for the defect in lieu of the repair of the defect. Therefore, there are special circumstances that the contractor suffers an irrecoverable mental suffering due to the repair of the defect or the compensation for the damage, and only if the contractor knows or could have known such circumstances, the consolation money for mental

Article 390 of the Civil Act

Supreme Court Decision 91Da25628 delivered on December 10, 1991 (Gong1992, 485) 92Da34162 delivered on December 8, 1992 (Gong193Sang, 436)

Plaintiff

Defendant

Busan High Court Decision 92Na16515 delivered on March 19, 1993

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

1. We examine the Defendant’s ground of appeal No. 1.

The court below recognized the fact that there are defects in the building of this case newly constructed by the plaintiff based on the appraisal result of the appraiser non-party 1 and the fact that 13,427,00 won was required to repair the above defects and rejected the appraisal result of the non-party 2 against this. In light of the records, the court below's above evidence preparation and fact-finding is justified and there is no error of law of misunderstanding of facts due to a violation of the rules of evidence such as the theory of lawsuit. The argument is without merit.

2. We examine the second ground for appeal.

In general, if there is a defect in a newly built building by the contractor in the contract for new construction of a building, the mental suffering that the contractor has received shall be deemed to have been restored by the repair of the defect or the compensation for the defect in lieu of the repair of the defect. Therefore, there are special circumstances that the contractor suffers an irrecoverable mental suffering, and only if the contractor knows or could have known such circumstances, the solatium for mental suffering shall be recognized.

In the records of this case, there is a lack of evidence to prove that the defendant suffered an irrecoverable mental suffering due to the defect in the building of this case newly constructed by the plaintiff, and thus, the court below rejected the defendant's claim for consolation money for the same purport is somewhat insufficient and there is no error of law like the theory of lawsuit. The argument is without merit.

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

Justices Ansan-man (Presiding Justice)