[1] A person to whom the right to a warranty of defects under Article 9 of the former Act on the Ownership and Management of Aggregate Buildings belongs (=a sectional owner of an aggregate building)

[2] In a case where the issue is whether the council of occupants' representatives can be deemed to have requested the project undertaker to repair the defects on behalf of the sectional owners, the case holding that it is difficult to view that the council of occupants' representatives requested the project undertaker to repair the defects under the Act on the Ownership and Management of Aggregate Buildings, and that it is difficult to view that the project undertaker approved the warranty against the sectional owners on the sole ground that the project undertaker had the construction contractor perform the defect repair work in response to the request for the defect repair by the council of occupants' representatives and had the

[1] Article 9 of the former Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 6925 of July 18, 2003) / [2] Article 9 of the former Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 6925 of July 18, 2003)

[1] Supreme Court Decision 2008Da84229 Decided February 12, 2009

The council of occupants' representatives (Attorneys Park Hong-chul et al., Counsel for the plaintiff-appellant)

Korea Land and Housing Corporation (Attorney Kim Jong-soo, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2008Na681 decided May 12, 2009

The part of the judgment below against the defendant is reversed, and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Article 9 of the former Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 6925, Jul. 18, 2003; hereinafter “former Act”) provides for a sectional owner of an aggregate building with a right to demand the repair of defects to the business entity of an apartment building, barring any special circumstances. Although the related housing law grants a right to demand the repair of defects to the business entity of an apartment building, it only aims to set the criteria for the prompt repair of defects as a warranty bond by determining the procedure, method, and period, etc. of the repair of defects at an administrative level (see Supreme Court Decision 2008Da84229, Feb. 12, 2009). Since the right to demand the repair of defects and the right to demand the repair of defects by a sectional owner and the right and obligation of the parties to legal relations are completely distinct rights, it cannot be deemed that the council of occupants' representatives has made a request for the repair of defects on behalf of the business entity, barring any special circumstance.

2. On December 30, 2004, the court below held that the lawsuit of this case brought by the plaintiff against the defendant (the Korea National Housing Corporation and the Korea Land & Housing Corporation, which is the litigation trustee thereof; hereinafter the same shall apply) is not lawfully exercised the right within the exclusion period, since the council of occupants' representatives could directly exercise the damage claim in lieu of defect repair. The plaintiff's intent of this case was changed into the claim for transfer money, and it is clear that the ten-year exclusion period from June 26, 1995, which was the date of use inspection, passed after the expiration of the ten-year exclusion period from June 26, 1995. However, after the new construction of the apartment of this case, the plaintiff requested repair construction on behalf of the defendant on several occasions on behalf of the sectional owners from August 27, 2004, it is reasonable that the plaintiff comprehensively exercised his right to each defect through the plaintiff composed of the representatives of each sectional owners, and eventually, the plaintiff or sectional owners lawfully exercised the right within the exclusion period.

3. However, in light of the legal principles as seen earlier, it is difficult to view the Plaintiff’s demand for repair work to the Defendant upon the request of the sectional owners as the exercise of the sectional owner’s right of claim for defect repair under the Aggregate Buildings Act. It is also difficult to view the Defendant as an approval of the liability for defect repair under the Aggregate Buildings Act on the ground that the Defendant, recognized by the lower court, ordered the contractor to perform the defect repair work in response to the Plaintiff’s request for defect repair and to receive the certificate of defect repair completion from the Plaintiff. On June 26, 1995, it is insufficient to view that the sectional owners exercised their right of claim for defect repair or the right to claim damages in lieu of defect repair before ten years elapse from the delivery date of the apartment in this case, or that the Defendant approved the liability for

Therefore, even if the plaintiff demanded repair works to the defendant and the contractor several times, such circumstance alone does not readily conclude that the plaintiff exercised the right to claim damages in lieu of defect repair on behalf of the sectional owners, but should have deliberated on whether the non-party owners could have exercised the right to claim damages in lieu of defect repair within 10 years from the time of delivery of the apartment in this case and determined whether the defendant's allegation that the limitation period has elapsed should be justified.

Nevertheless, the court below rejected the defendant's argument that the limitation period has expired and partly accepted the plaintiff's claim for the transfer money of this case. In so determining, the court below erred by misapprehending the legal principles on the exercise of claim for damages and the limitation period in lieu of defect repairs under Article 9 of the former Act on the Ownership and Management of Aggregate Buildings, which did not exhaust all necessary deliberations, and it is obvious that this affected the conclusion of the judgment.

Supreme Court Decision 2008Da12439 Decided December 11, 2008, cited by the court below, is related to the claim that the plaintiff added the claim for the acquisition amount on the ground that the plaintiff was transferred the right of compensation in lieu of defect repair from the sectional owners, and the claim for modification of the cause of the claim was submitted, and it is not appropriate to invoke the claim in this case, as otherwise stated in this case, even if the period of exclusion has not elapsed since the date of delivery of the apartment to the sectional owners.

4. Therefore, without examining the Defendant’s remaining grounds of appeal, the part against the Defendant among the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cha Han-sung (Presiding Justice)