The council of occupants' representatives (Law Firm L&C, Attorneys Kim Gyeong-tae et al., Counsel for the plaintiff-appellant)

The administrator, non-party 1 and one other (Law Firm Dong-dong, Attorneys Ansan-ho et al., Counsel for the plaintiff-appellant) of the Debtor Rehabilitation and Construction Corporation, a lawsuit taken over by the World Construction Corporation

December 1, 2011

1. Of the Plaintiff’s rehabilitation debtor’s custodian Nonparty 1’s lawsuit against Nonparty 1, the part seeking the confirmation of the damage claim against the World Construction Co., Ltd. based on the obligee’s subrogation right, and the part seeking the confirmation of the direct damage claim against the Plaintiff against the World Construction Co., Ltd. which the Plaintiff claimed against the World Construction Co., Ltd., which in turn is dismissed.

2. The Defendant Housing Guarantee Co., Ltd. shall pay to the Plaintiff 1,887,743,971 won and 110,000,000 won among them, 5% per annum for the remainder of 1,777,743,971 won, and 5% per annum for the period from November 2, 2011 to February 9, 2012, and 20% per annum for the period from the next day to the date of full payment.

3. The plaintiff's rehabilitation debtor's claim against the administrator non-party 1 is dismissed.

4. Of the costs of lawsuit, the part arising between the Plaintiff and the administrator Nonparty 1 of the rehabilitation debtor construction corporation shall be borne by the Plaintiff, and the part arising between the Plaintiff and the defendant housing guarantee corporation shall be borne by the defendant housing guarantee corporation.

5. Paragraph 2 can be provisionally executed.

With respect to the rehabilitation claim against the Plaintiff’s Debtor World Construction Co., Ltd. (hereinafter “Rehabilitation Company”), the amount of KRW 2,299,094,660, and KRW 1100,000,000,000,000 shall be determined as follows: (a) as to the remainder of KRW 2,189,094,660 from the service date of the copy of the complaint of this case; and (b) as to the remainder of KRW 2,189,09,094,660 from the following day to the service date of the copy of the application for correction of the claim of this case and the date of the decision of this case; and (c) as for the period from the following day to the day of full payment, the Defendant Housing Guarantee Co., Ltd. shall pay the amount in writing 2,00

1. Basic facts

A. Status of the parties

1) The Plaintiff is an autonomous management organization that is composed of occupants for the management of 10-dong 1,156 households of the 10-dong Do-dong 10-dong Do-dong Do-dong Do-dong Do-dong Do-dong (hereinafter “instant apartment”).

2) The rehabilitation company is the construction contractor of the instant apartment building by receiving a new construction work of the instant apartment from the World SPD Co., Ltd. (former trade name: Hydydydydydyd Co., Ltd.; hereinafter referred to as “SPD”), the implementer of the instant apartment.

3) The Defendant Housing Guarantee Co., Ltd. (hereinafter “Defendant Housing Guarantee”) guarantees the duty to repair the defects of the instant apartment of the rehabilitation company as follows:

(b) Conclusion of a warranty contract;

On November 15, 2005, the rehabilitation company entered into each contract for the warranty of defects (hereinafter referred to as the "each guarantee contract of this case") with the content of the following (the guarantee creditor of each guarantee contract of this case was changed to the plaintiff) with the head of the Busan Metropolitan City annual Gu, which is the authority for usage inspection of the apartment of this case, as the guarantee creditor of the apartment of this case (the guarantee creditor of each guarantee contract of this case of this case was changed to the plaintiff).

Meanwhile, the apartment of this case was approved on December 9, 2005.

[Attachment 1]

The Guarantee No. 1 (Guarantee No. 1 omitted) 1 (Guarantee No. 1 omitted) - December 9, 2005 to December 8, 2006 (1 year), 1,340,525,328 2 (No. 2 omitted) from December 9, 2005 to December 8, 2007 (2 years), 1,340,525,328 3 (No. 3 omitted) - December 9, 2008 to December 8, 2008 (3 omitted) 2,010,787,924 (No. 4 omitted) - December 9, 2005 to December 9, 2005, 305 to 1,340,50,93 (No. 95,924) -

(c) Occurrence, etc. of defects;

The rehabilitation company did not construct the part to be constructed in accordance with the design drawing on the apartment of this case, or revised the same differently from the defective construction or design drawing on the apartment of this case. Therefore, there were defects such as building outer walls and internal ruptures, water leakages, and the poor quality in the section for common use and section for exclusive use

The sectional owners of the instant apartment and the Plaintiff continuously requested the rehabilitation company to repair the defects from the time long elapsed after the occupancy. Accordingly, the rehabilitation company implemented the repair work for some defects. Nevertheless, the instant apartment still remains a defect as shown in the attached Table 1, and the cost of repairing the apartment is as listed below (attached Table 2).

[Attachment 2]

The 10,174,590 1,937,96,724, 96, 294, 294, 297, 328, 247, 320, 320, 327, 320, 320-19, 499, 49, 637, 7244, 296, 299, 724, 299, 744, 759, 759, 1328, 327, 240, 320-19,49, 436, 237, 585, 461, 250, 684, 239, 247, 408, 247, 408, 408

D. Assignment of damage claim

Of the 1,156 households of the apartment of this case, 1,106 households, excluding the non-transfer household of 50 households, transferred the damage claim in lieu of the defect repair to the Plaintiff, and at that time notified the rehabilitation company of the fact of the transfer of the above claim.

In addition, the ratio of the total area of the section for exclusive use by the 1,106 generation that transferred the damage claim in lieu of the repair of the defect in this case to the total area of the entire household is 93.76%.

(e) Commencement of rehabilitation procedures for a rehabilitation company;

On the other hand, on March 17, 201, when the lawsuit in this case was pending, the rehabilitation company was decided to commence rehabilitation proceedings with Suwon District Court 201 Gohap 13, and Nonparty 1 was appointed as the administrator of the rehabilitation company and taken over the lawsuit in this case of the rehabilitation company.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 8, Eul evidence Nos. 9 (including each number), each appraisal result of non-party 2 (hereinafter "appraisal"), and each fact-finding result on the appraiser, the purport of the whole pleadings.

2. Claim against the defendant administrator;

A. Determination on this safety defense

1) Part of a claim for the confirmation of damage claim based on subrogation right of a creditor

A) In the instant lawsuit, the Plaintiff sought the confirmation of the damage claim based on the contract that the World HSD has against the rehabilitation company by subrogationing the claim for damages based on Article 9 of the Act on the Ownership and Management of Aggregate Buildings (hereinafter “the Aggregate Buildings Act”) or Article 46 of the Housing Act, which is held by the sectional owners of the instant apartment against the rehabilitation company, and the confirmation of the damage claim based on the contract that the World HSD has against the rehabilitation company.

B) However, rehabilitation creditors can only file a lawsuit for confirmation of a claim or take over a lawsuit that has already been pending at the time of commencement of the rehabilitation procedure. Thus, a claim that has not been reported at the date of claim inspection cannot be newly asserted, and the claim amount or new priority cannot be claimed more than that stated in the claim list.

Therefore, in case where a lawsuit is pending on the lawsuit for confirmation of the rehabilitation claim or the right that is not entered in the claim list, such as the right, the amount of the claim, the existence of priority, etc., that is not entered in the claim list, the request

C) In light of the following circumstances that are acknowledged by adding the whole purport of the pleadings to the statement in the evidence No. 18 of this case, rehabilitation claims reported by the Plaintiff in the rehabilitation proceedings against the rehabilitation company on April 26, 2011 appear to be the direct damage claim against the rehabilitation company of the owners of the instant apartment that the Plaintiff initially asserted, and there is no evidence to support that the Plaintiff reported on the subrogation of the damage claim against the rehabilitation company by subrogation of the monthly HSD on behalf of the Plaintiff in subrogation of the World HSD in subrogation of the contract for the rehabilitation company.

① On April 26, 2011, in the rehabilitation procedure for a rehabilitation company, the Plaintiff submitted a rehabilitation claim statement (No. 18) to the effect that “the Plaintiff acquired the damage claim in lieu of defect repairs from the sectional owners of the instant apartment that was constructed by the rehabilitation company, and filed a claim for KRW 2,270,273,715 of the damages in the Busan District Court’s claim for damages claim No. 2010Gahap10279, which was filed against the rehabilitation company.” However, the said rehabilitation claim statement does not contain any indication that the Plaintiff filed a claim for damages against the rehabilitation company in lieu of the monthly HSD in subrogation of the monthly HSD.

② In the initial lawsuit of this case, the Plaintiff asserted that the rehabilitation company, as a co-implementer of the apartment of this case, bears the liability for warranty against defects under Article 9 of the Aggregate Buildings Act, and that the company bears the liability for warranty against defects as a project proprietor under Article 46(1) of the Housing Act as the contractor of the apartment of this case, and that the company bears the liability for warranty against the debtor as a project proprietor under Article 46(1) of the Housing Act, and the Plaintiff claimed that, on November 1, 2011, HSD sought the confirmation

Therefore, it is difficult to view the report of rehabilitation claims against the rehabilitation court on April 26, 201, the plaintiff's prior to his prior reference, as the report of damage claim against the rehabilitation company of HSD.

D) Therefore, the part of the instant lawsuit seeking the confirmation of the damage claim based on the contract that the World HSD holds against the rehabilitation company in subrogation of the World HSD is unlawful as it seeks the confirmation of the rights, amount of claims, etc. not stated in the claim list.

2) The part claiming the confirmation of direct damage claim

A) The Plaintiff is seeking against the Defendant manager the confirmation of damages claim 2,299,094,660 won in lieu of defect repair to the rehabilitation company.

B) The fact that the Plaintiff reported the damage claim KRW 2,270,273,715 to the rehabilitation company as the rehabilitation claim in the rehabilitation procedure on April 26, 2011 is as seen earlier, and there is no other evidence to support that the Plaintiff reported the claim in excess of the above amount.

Therefore, the part of the Plaintiff’s claim for confirmation of damage claim 28,820,945 won in lieu of defect repair against the rehabilitation company (the claimed amount 2,299,094,660 won in return for rehabilitation claim return amount 2,270,273,715) in the lawsuit against the Defendant custodian is unlawful since it seeks confirmation of the rights not entered in the claim list, the amount of claims, the existence of priority rights, etc.

B. Judgment on the merits

1) As to the claim of warranty against defects under Article 9(1) of the Aggregate Buildings Act

A) The plaintiff asserts that the rehabilitation company is a project undertaker who newly built and sold the apartment of this case, under Article 9(1) of the Aggregate Buildings Act and Articles 667 through 671 of the Civil Act, the plaintiff bears the warranty against the co-owners.

B) The plaintiff's assertion is without merit, since there is no evidence to acknowledge that the rehabilitation company built and sold the apartment of this case jointly with the World HSD.

2) As to the assertion of warranty liability under Article 46 of the Housing Act

A) As the rehabilitation company constructed the apartment of this case, the Plaintiff asserts that as a project proprietor under Article 46(1) of the former Housing Act (amended by Act No. 7520 of May 26, 2005), the Plaintiff is liable for the warranty against the sectional owners.

B) On the other hand, even though the rehabilitation company is included in the project undertaker, including the contractor under Article 46(1) of the former Housing Act, Article 46(1) of the former Housing Act only provides for the project undertaker with the “liability to repair defects” under Article 59(1) [Attachment 6] of the Enforcement Decree of the Housing Act. However, Article 46(3) of the same Act provides for the project undertaker’s liability to compensate for damages in the event of a serious defect in the portions of proof-stress structures of multi-family housing within the warranty liability period under Article 59(1) of the Enforcement Decree of the Housing Act, but it does not provide for the liability to compensate for all defects

In addition, there is no evidence to prove that the defects in the apartment in this case were “important defects that occurred in the fire-proof structure,” and thus, the rehabilitation company cannot be deemed to be liable for damages to the sectional owners of the apartment in this case pursuant to Article 46(1) and (3) of the former Housing Act with respect to the defects in the apartment in this case.

Therefore, there is no reason for the plaintiff's assertion on this part.

3. Request against the defendant's housing guarantee;

A. Determination on the assertion of defects in the defendant's housing guarantee

1) As to the assertion of defects falling short of the permissible rupture width

A) Defendant’s assertion

Due to the characteristics of concrete, there inevitably occur a certain level of rupture in the process before and after deterioration. Accordingly, according to the concrete rupture repair specialized specifications, etc. enacted by the Ministry of Land, Transport and Maritime Affairs, 0.3mm in the case of damp environment and 0.4mm in the building environment, respectively, the permissible rupture width is determined.

Therefore, cracks less than 0.3m are not defects due to the unique characteristics of concrete materials.

B) Determination

Even in cases of rupture less than the permissible rupture, it may hinder the function and safety of the building, such as lowering the durability of the structural body, due to the corrosion of rainwater and the spread of ruptures due to the infiltration of rainwater, etc. In addition, when concrete outer walls from which ruptures have occurred are exposed, it may interfere with the aesthetic view and reduce the durability of the building. Furthermore, even if the rupture of the building was less than 0.3mm or 0.4mm at the time of appraisal, it is necessary to repair it with a high possibility that the width will be expanded continuously due to the characteristics of the climate change in Korea.

Therefore, it is not reasonable to uniformly exclude rupture below certain standards from defect repair objects without considering the environmental conditions that occur in rupture.

Therefore, this part of the defendant's argument is without merit.

2) As to the non-application of the certificate of complaint

A) Defendant’s assertion

Considering the increase requirements of goods among the construction parts of the standard construction cost of construction works established by the Korea Construction Association, it is limited to only where the number of goods is significantly lowered, such as steel tower or chimney, and in practice, in the case of rupture repair works or painting construction works such as the apartment of this case, there is no repair work by applying a certificate of accusation. Therefore, it is unreasonable for an appraiser to apply a premium rate of 50% when calculating the cost of repair of outer walls of this case.

B) Determination

In other words, it is not particularly unreasonable for the appraiser to apply the premium rate in consideration of the size of the apartment of this case, number of floors, work efficiency in the complaint, etc. in light of the following circumstances, i.e., high-rise apartment of 23 to 27 stories, which are the apartment of this case, to repair the defects of the outer wall, and the fact that the complaint is essential in repairing the defects of the outer wall, and ② the painting construction, which is conducted after the rupture repair work and the rupture repair work after the occupancy of the occupants, are conducted after the occupancy of the apartment is completed.

Therefore, the defendant's above assertion is without merit.

3) As to the assertion of calculating the cost of repairing the defect in the cross-story heat of the wall of the outer wall

A) Defendant’s assertion

It is unreasonable for an appraiser to calculate the cost of repairing defects by applying 8,577 won per m (50% per m) which is not 5,227 won per m, but 8,577 won per m (50% per m, which is 5,27 won per m, the unit price of Malman Construction Co., Ltd., which is the unit price of Malman-man, which is one of the specialized companies

B) Determination

It is difficult to readily conclude that the unit cost of repair between floors of lurman Construction Co., Ltd. was calculated reasonably and appropriately, and it is difficult for an appraiser to apply the premium rate to the average unit cost of the three specialized companies for rupture repair, taking into account the number of floors and scale of the apartment in this case, and calculated the cost of repairing defects on the wall surface of the wall of the apartment building cannot be deemed considerably unreasonable or unreasonable.

Therefore, the defendant's above assertion is without merit.

4) As to the basic construction process

A) Defendant’s assertion

In the case of re-designing after the rupture repair process, such as the apartment of this case, the rupture repair process is prior to the rupture of painting, which is the basis of the rupture, removal of foreign materials, etc., and thus, the rupture construction process is unnecessary.

B) Determination

Since the process of rupture repair and post-repair is carried out in the order of "the removal of rupture prior to the execution of rupture repair, processing based on painting, and painting," it is necessary to conduct a work on the basis of painting after rupture maintenance separately from the rupture grating machine that is conducted prior to the execution of remuneration.

Therefore, the flag flag and surface flag are separate processes that are not already included in the initial and finishing process of flaging, so the above argument by the defendant is without merit.

5) As to the assertion of the equal remuneration method of the red wall

A) Defendant’s assertion

Although it is no longer necessary for appraiser to execute the method of repairing the red brick in the form of surface carbon repair method or to perform it as coworking material, the appraiser calculated the excessive cost of repairing defects by applying the sealing repair method after Bring(V-CUTING).

B) Determination

The method of repairing defects shall be selected at the discretion of an appraiser in consideration of the state of defect parts, the appropriateness, stability, economic feasibility, etc., and the appraiser's appraisal result shall be respected unless there exist significant errors such as that the appraisal method is against the rule of experience or unreasonable (see Supreme Court Decision 2004Da70420, 70437, Feb. 22, 2007).

However, there is no evidence to deem that the appraisal result of an appraiser who calculated defect repair costs by applying a sealing repair method after Br- printing (V-CUTING) with respect to the crack repair of a lighting wall is contrary to the empirical rule or unreasonable, and there is no reason to assert this part of the defendant's assertion.

6) As to the assertion of thickness of the fire door board

A) Defendant’s assertion

Article 26 (1) of the Rules on the Standards for Evacuation Structure, etc. of Buildings provides that "A type door shall be constructed on both sides by attaching iron plates with a thickness of at least 0.5 meters, respectively," and it can be interpreted that "STRAE 1.6 meters in the completion drawings of the apartment of this case" as indicated on the completion drawings of the apartment of this case should be constructed with a thickness of at least 1.6 meters in total.

Therefore, it cannot be viewed as a defect that the rehabilitation company constructed the door of the apartment of this case with an average of 0.96 meters thickness.

B) Determination

In the completion drawing of the apartment of this case, the apartment of this case ordered the construction of the door "STRAE 1.6m m2" with respect to the thickness of the door, and there is no evidence to regard this as an instruction on the thickness of both sides, not a cross-section. Thus, there is no reason to assert this part of the defendant's assertion.

7) As to the assertion of defective defects in landscaping height items and trees

A) Defendant’s assertion

The appraisal of defects on the apartment of this case was conducted more than five years after the date of approval for use of the apartment of this case, and the possibility that landscaping trees were dead due to the plaintiff's negligence in management cannot be ruled out. Thus, the defect repair cost for this part of the apartment of this case shall be reduced partially in consideration of the above circumstances.

B) Determination

According to the results of the appraiser's appraisal and each fact-finding on the appraiser, it can be recognized that the rehabilitation company did not properly repair the defects of the landscape trees even though it was requested by the plaintiff within one year from the date of approval for use of the apartment of this case, and thereafter, defects such as the death, standard, quantity shortage, etc. have occurred due to the failure to properly manage the landscape trees, and there is no other evidence to recognize that the failure of the plaintiff's management, etc. contributed to the occurrence of this part of this case or the expansion of damages.

Therefore, the defendant's above assertion is without merit.

8) As to the defects below the thickness of household timber

The defendant asserts that the defect repair cost is excessive with respect to the defect that falls short of the thickness of the present timber in each of the apartment units of this case.

According to the results of the appraiser's appraisal and each fact-finding on the appraiser's appraiser's results, since the door itself was constructed in favor of not only the main body, but also the internal container, it can be acknowledged that the appraiser calculated excessive expenses for defect repair including the front door, even though the defect repair expenses should be calculated except the front door, and when calculating the defect repair expenses, the defect repair expenses for this part should be reduced by 413,868 won.

Therefore, the defendant's above assertion is reasonable.

9) As to defects in interference with the opening and closing of the bathing room

A) Defendant’s assertion

(1) Generally, the height of sludge used in a bath room is 7 to 8cc. Thus, even if the instant apartment bath is constructed in accordance with the design drawing, the difference in the bath room becomes less than 7cc. and the slicker will walk at the time of the opening and closing of the bath room.

Therefore, it cannot be recognized as a defect due to a mistake in the execution of the rehabilitation company.

(2) Even if it is not so, even if this part of the defect is not so, it is possible to sufficiently repair this part by installing a sub-board on a one-time basis, the appraiser removed the floor of the bath room and calculated the defect repair cost in excess by re-construction in accordance with the difference.

B) Determination

In light of the design drawing and the current construction status of the bathing room in the apartment household of this case, the appraiser removed the part which failed to secure the relevant difference and then calculated the repair cost by reconstruction method. The appraiser’s appraisal result is not against the rule of experience or unreasonable, and it is difficult for the appraiser to fully achieve the purpose of repairing defects by installing a sub-market, considering the damage of sub-market, deterioration, etc.

Therefore, there is no reason for this part of the defendant's assertion.

(b) Occurrence of guarantee liability;

The fact that the defendant's house guarantee contract for the defendant is concluded between the rehabilitation company and the debtor's company on November 15, 2005 is as mentioned above.

Therefore, as a guarantor of the duty to repair defects of the rehabilitation company, the defendant's housing guarantee is obligated to pay the plaintiff a warranty bond equivalent to the repair cost of each defect within the warranty period under each guarantee contract of this case.

C. Scope of guarantee liability

Expenses incurred in repairing defects subject to the guarantee of the defendant's house warranty shall be the expenses incurred in repairing defects due to the defect in attached Form 1, 2, 3, 5, and 10, excluding the expenses incurred in repairing the defects before pre-use inspection and the expenses incurred in repairing the defective defects in attached Form 1.

Therefore, the warranty bond to be paid to the Plaintiff by the Defendant under each guarantee contract of this case is as follows, and the total amount is KRW 1,887,743,971.

[Attachment 3]

The aggregate of repair expenses for the 105th 2 years between the 1st 205th 205th 2, 305th 205th 105th 205th 2,305th 205th 205th 205th 205th 165th 206,366,036,036,03636,49,4366,63636,965th 205th 205th 205th 205th 205th 25th 205th 25th 35th 206,305th 365th 196,365th 196,365th 25th 206,306,365th 196,316,316,4175,305,3105,3197,3829

D. Sub-determination

Therefore, as a guarantor of the obligation to repair defects under each of the instant guarantee agreements, the Defendant’s Housing Guarantee is obligated to pay to the Plaintiff the amount of KRW 1,887,743,971 and KRW 110,000,000,000 from June 15, 2010, which is the day following the delivery date of a copy of the instant complaint, and to the remainder of KRW 1,777,743,971 from November 2, 2011, which is the day following the delivery date of a copy of the instant claim and the written application for correction of the cause of the claim, to the Plaintiff as a guarantor of the obligation to repair defects under each of the instant respective guarantee agreements, 5% per annum under the Civil Act from the date of delivery of the copy of the written application for correction to the day of complete payment, and 20% per annum under the Act on Special Cases Concerning the Promotion,

4. Conclusion

Therefore, among the plaintiff's lawsuit against the defendant administrator, the part that seeks the confirmation of the damage claim against the rehabilitation company based on the creditor's subrogation right, and the part that the plaintiff seeks the confirmation of the direct damage claim against the rehabilitation company, which is 28,820,945 won, is dismissed in entirety, and it is unlawful, and the plaintiff's claim against the defendant's house guarantee is justified, and the plaintiff's remaining claim against the defendant administrator is dismissed without any reason. It is so decided as per Disposition.

[Attachment]

Judges Han Jae-dae (Presiding Judge)

(1) The cost of defect repair reflects the part acknowledged in the assertion of the Defendant’s housing guarantee as follows: