2019Guhap76283 Action demanding the cancellation of a defective determination

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March 19, 2020

April 23, 2020

1. The plaintiff's main claim is dismissed.

2. The part of the conjunctive claim in the instant lawsuit is dismissed.

3. The costs of lawsuit shall be borne by the Plaintiff.

○ The primary claim is revoked on January 30, 2019 by the Defendant’s disposition of determining defects against the Plaintiff.

○ Preliminary Claim: The decision that the Defendant rendered to the Plaintiff on May 30, 2019 is revoked.

1. Details of the disposition;

A. The Plaintiff is a person who has sold ○○○ apartment, and the Defendant is a committee established under the Ministry of Land, Infrastructure and Transport pursuant to the Multi-Family Housing Management Act (hereinafter “Act”) to review, coordinate, and take charge of affairs related to warranty against defects, defect repair, etc.

B. On the ground that the purchase of the above A. A. apartment *** Dong***** (hereinafter referred to as the “instant apartment”) filed an application for a defect review with the Defendant on the ground that C had not installed a spare power source device in the monthly seat of the ward. The Defendant determined that the instant apartment was unconstruction on the ground that on January 30, 2019, the “on the ground that the spare power source device was not constructed, resulting in an obstacle to safety and function” (hereinafter referred to as the “instant judgment”).

C. Upon the Plaintiff’s filing of a formal objection, the Defendant re-examines the apartment, and on May 30, 2019, the shoulder installed in the apartment of the instant apartment falls under the intelligent home network. According to the installation of intelligent home network facilities and technical standards, it is necessary to ensure that the preliminary power source can be supplied at the time of the power failure. The instant failure failure was dismissed on the ground that it did not have any problem in the previous judgment that deemed safety and functional defect as a defect (hereinafter “instant decision”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 5, 7, 8, 9 (including branch numbers), the purport of the whole pleadings

2. Determination on the lawfulness of the instant lawsuit

A. Defendant’s defense

The Defendant is not an independent administrative agency delegated or entrusted with administrative authority under statutes, but merely an advisory committee. The Defendant’s determination of defects is merely confirming the duty to repair defects that existed, and thus does not cause direct changes to the rights and obligations of the parties, so it cannot be deemed a disposition, etc. subject to revocation litigation

B. Determination

The Defendant was established under the Ministry of Land, Infrastructure and Transport to determine defects related to warranty liability and defect repair (Article 39(1) and (2) of the Act). The Act guarantees the right to file an application with a person who intends to apply for defect review (Article 39(3) of the Act), and the Defendant shall determine defects and deliver a written judgment to the parties concerned (Article 43(2) of the Act). If it is determined as constituting defects, the project undertaker, etc. shall repair defects within the payment period (within 60 days from the date of delivery of the written judgment) set forth in the written judgment (Article 43(3) of the Act, Article 57(1) and (2) of the Enforcement Decree of the Act), and the result of the repair shall be immediately registered in the defect management information system (Article 57(3) of the Enforcement Decree). If the project undertaker fails to perform the above defect repair obligation, an administrative fine not exceeding 10,000,000 won is imposed (Article 102(2)5

The Defendant’s determination of defects imposes an obligation to repair defects with a specific period of time on the Plaintiff as a result of the fact that the applicant’s application for defect examination constitutes defects, which is ultimately conducted by the Defendant’s business in accordance with the authorization of statutes. If the Plaintiff fails to perform the said obligation within the given period, it would be at risk of imposing an administrative fine, and may lead to various disputes with various interested parties in the future multi-family housing due to the determination of defects. Therefore, in the process of the determination of defects, allowing the parties to resolve legal uneasiness at an early stage of the determination of defects to resolve the dispute at an early stage, it would be able to resolve the dispute at an early stage (see, e.g., Supreme Court Decisions 2009Du23617, 23624, Mar. 10, 201; 201Du7321, Jun. 10, 2011). The Defendant’s determination of defects is justifiable to be subject to an administrative litigation (see, e.g., the instant decision of this case).

3. Judgment as to the main claim

A. Determination as to the defendant's objection period and defense

The defendant raised a revocation suit after the lapse of 90 days from the date when the plaintiff became aware of the disposition even if the judgment of this case is subject to the revocation suit. Thus, the plaintiff raised a revocation suit after the lapse of 90 days.

According to the evidence and the purport of the entire pleadings as seen earlier, the Plaintiff’s objection to the instant decision after being served on February 12, 2019 and raising an objection thereto on June 10, 2019, and thereafter, on August 13, 2019, within 90 days from the date the decision was served on June 10, 2019. The law allows a person who has an objection to the conclusion of the Defendant’s defect determination (Article 43(4)) to raise an objection (Article 43(4)). A person who intends to raise an objection shall attach written opinions prepared by a specialized safety diagnosis institution under Article 48(1) of the Act or an attorney-at-law registered under the Attorney-at-Law Act (Article 57-2 of the Enforcement Decree; Article 43(4) of the Act; Article 57-2 of the Enforcement Decree). If necessary, the Defendant’s submission of the written opinion to the Plaintiff’s final decision after the final decision was rejected (Article 43(5)6) of the Act).3).

B. Whether the instant judgment is lawful

1) The plaintiff's assertion

The usage inspection drawing or sales contract of the apartment of this case must be executed at the time of the failure construction.

There is no content that the device should be installed even with the spare power source. Bads installed by the Plaintiff with only a part of network functions for the convenience of the occupants do not correspond to “intelligent home network facilities” under the law. Therefore, the failure to install the spare power source system cannot be seen as a failure related defect. The instant judgment that said defect is illegal.

2) Determination

The term "defect of a building" means any defect of a building generally completed within the construction contract.

The phrase “a structural and functional defect different from the usage” or “a quality that must be prepared in light of the transaction concept” refers to a defect that is not properly equipped. The determination of the defect ought to be made by comprehensively taking into account various circumstances, such as the content of the contract between the parties concerned, whether the relevant building was constructed according to the design design, whether the relevant building meets the standards prescribed in the construction-related statutes (see Supreme Court Decision 2008Da16851, Dec. 9, 2010

In full view of the above evidence, Eul evidence No. 2 and the facts and circumstances that are recognized or known by the purport of the entire pleadings, it is judged that the preliminary power source device was not installed on the instant apartment pash. The first plaintiff's primary claim is without merit on the premise that it is not a defect.

(1) The intelligent home network facilities attached to a house are ancillary facilities under the Housing Act [Article 2 subparag. 13 (b) of the Housing Act, Article 2 (1) 4 of the Building Act], and the project undertaker shall implement a housing construction project in accordance with the installation standards prescribed by statutes (Article 35 (3) of the Housing Act). The regulations on the housing construction standards, etc. delegated by the Housing Act (Presidential Decree) stipulate that intelligent home network facilities are “facilities that provide integrated housing services through mutual links between households or housing complexes, such as intelligent information and communication and home appliances, in order to improve the performance of housing and the quality of housing (Article 32-2).” The pedals installed in the apartment of this case have lighting position function in the household, heating control function, gas reduction and gas valve control function, Doca and crime prevention room function, digital air-phone functions, digital air-phone function, control and bathing room function, digital-phone TV and bathing room functions, which constitute an integrated home system to provide integrated housing services through mutual information and communications networks and integrated home systems.

As long as the plaintiff is proceeding with the installation of a spash, the equipment shall conform to the standards for installation and technology prescribed by relevant Acts and subordinate statutes.

(2) Article 32-2 of the Regulations on Standards, etc. for Housing Construction shall establish intelligent home network facilities.

The Ministry of Land, Infrastructure and Transport, the Minister of Trade, Industry and Energy, and the Minister of Science and ICT jointly announced the standards for installation of intelligent home network facilities and technical standards. The above announcement defines the term "preliminary power source equipment" as a device to protect home network facilities, etc. that supply emergency power supply by electric power failure or power generators (Article 3 subparag. 6), and stipulates that the instant notice should be made in one of the home network equipment so that the spare power source can be supplied (Article 4(1)2 Item (b), and Article 11(1)) (see, e.g., Supreme Court Decisions 97Nu6261, Jul. 23, 199; 2003Du274, Sept. 26, 2003; 2003Du274, Sept. 16, 2003).

③ The instant apartment sales advertisement is equipped with a distance control home network system in the instant apartment sales advertisement.

The purport of subparagraph 2 is included (Evidence No. 2). This falls under the intelligent home network facilities as prescribed by the Act and subordinate statutes. In general, even if the content of the sale advertisement is merely an inducement of the offer, it shall be deemed that there was an implied agreement to sell in lots, barring any circumstances such as reservation of objection at the time of the contract, barring any circumstance such as reservation of objection at the time of the contract, it is reasonable to deem that there was an implied agreement to sell in lots. The evidence submitted by the Plaintiff alone is insufficient to acknowledge the circumstance that the Plaintiff and the buyer of the apartment house of this case concluded a contract different from the sale advertisement of this case, and there is no evidence to acknowledge it otherwise.

Therefore, the complete installation of intelligent home network facilities is included in the contract contents, and it is a contractual defect that fails to install a spare power unit on the monthly plaque among them is an incomplete performance.

4. Determination on the conjunctive claim part among the instant lawsuit

The defendant argues that the decision of this case is merely maintaining the decision of this case and it is not subject to a revocation lawsuit separately.

On the other hand, an objection under Article 43(4) of the Act is a procedure under which the Defendant, who has judged defects, re-examines the matters requested pursuant to the Defendant’s objection, to correct them by himself/herself. In particular, a decision not to accept the objection as stated in the instant decision is merely maintaining the contents of the previous decision and thus cannot be deemed an exercise of public authority, which may cause new changes to the Plaintiff’s rights and obligations, the applicant for objection (see, e.g., Supreme Court Decision 2015Du45953, Jul. 27, 2016). This is clear even in cases where the period of remuneration is not satisfied to change the original decision (i.e., where the initial decision is maintained), and it does not meet the quorum for changing the determination of defects (i.e., where the initial decision is maintained), and it is unlawful as it does not seek revocation of the instant preliminary claim corresponding to the decision that constitutes the rejection decision, other than the original decision, which is subject to revocation of the revocation lawsuit.

5. Conclusion

The plaintiff's primary claim is dismissed as it is without merit, and the conjunctive claim is dismissed as it is so decided as per Disposition.