[1] The legal nature of the contractor's warranty liability period under Articles 667 through 671 of the Civil Code applied mutatis mutandis by Article 9 of the former Act on the Ownership and Management of Aggregate Buildings (=the exclusion period)

[2] Whether the council of occupants' representatives of multi-family housing has the right to a warranty of defects under Article 9 of the former Act on the Ownership and Management of Condominium Buildings in addition to the right to repair defects (negative)

[3] Where the council of occupants' representatives requests the business entity to repair the defects, whether the council of occupants' representatives claims the repair of defects on behalf of the sectional owners or whether the sectional owners exercised the right to claim the repair of defects through the council of occupants' representatives

[4] Where a project proprietor and a project owner are liable for damages pursuant to Article 38 (16) of the former Housing Construction Promotion Act

[1] Article 9 of the former Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 6925 of Jul. 18, 2003), Articles 67, 668, 69, 670, and 671 of the Civil Act / [2] Article 9 of the former Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 6925 of Jul. 18, 2003), Article 38 of the former Housing Construction Promotion Act (amended by Act No. 5908 of Feb. 8, 1999), Article 16 of the former Decree on the Management of Aggregate Buildings (amended by Presidential Decree No. 1609 of Dec. 31, 198) / [see Article 59 of the current Enforcement Decree of the Housing Act] Article 9 of the former Housing Construction Promotion Act (amended by Act No. 1969 of Dec. 16, 209) / [3] Article 98 of the former Housing Construction Promotion Act (amended by Presidential Decree No. 985 of the Housing Construction Promotion Act)

[1] [2] Supreme Court Decision 2008Da88368 Decided January 14, 2010 / [2] Supreme Court Decision 2008Da48490 Decided December 24, 2008 / [3] Supreme Court Decision 2009Da34405 Decided March 24, 201 (Gong201Sang, 809)

The council of occupants' representatives of the 5-year apartment complex(Attorneys Park Hong-chul et al., Counsel for the plaintiff-appellant)

Korea Land and Housing Corporation (Law Firm Han & Yang, Attorneys Kim Ho-chul et al., Counsel for the plaintiff-appellant)

Dusan Construction Co.

Supreme Court Decision 2008Da48490 Decided December 24, 2008

Seoul High Court Decision 2009Na4758 decided March 24, 2010

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Since the warranty liability period of a contractor under Articles 67 through 671 of the Civil Act, which are applied mutatis mutandis by Article 9 of the former Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 6925, Jul. 18, 2003; hereinafter referred to as the "former Aggregate Buildings Act") is the limitation period for the exercise of judicial or extra-judicial rights, the warranty warranty right is naturally extinguished for the defect warranty warranty period. The proviso of Article 671 (1) of the Civil Act is applied to concrete structures such as the apartment of this case, and the warranty liability period is ten years after delivery (see Supreme Court Decision 2008Da8368, Jan. 14, 2010, etc.).

Meanwhile, barring special circumstances, the right to demand a warranty under Article 9 of the former Act on the Ownership and Management of Aggregate Buildings belongs to the owner of an aggregate building, and even though Article 38 of the former Housing Construction Promotion Act (wholly amended by Act No. 5908, Feb. 8, 1999; hereinafter the same shall apply) and Article 16 of the former Decree on the Management of Collective Housing (wholly amended by Presidential Decree No. 16069, Dec. 31, 1998; hereinafter the same shall apply) grant the resident representative's representative council under the former Housing Construction Promotion Act the right to demand a warranty against the project owner of an apartment house under the former Housing Construction Promotion Act. However, the purpose is to set the criteria for prompt repair of defects as a warranty bond by determining the procedure, method, and period of defect repair in the apartment house at an administrative level, and it cannot be deemed that the resident representative's representative council grants the right to demand a warranty of defects, in addition to the right to demand a warranty of defects (see, e.g.,

In addition, since the right to demand a repair of defects under Article 9 of the former Act on the Ownership and Management of Aggregate Buildings is a right to demand a repair of defects, or to claim a compensation for damages in lieu thereof, the exclusion period of the right to claim a compensation for damages in lieu of the repair of defects under this Article may be deemed to have been observed even in cases where the above right to claim a compensation for damages was directly exercised within the exclusion period, and where the council of occupants' representatives claims a repair of defects to the business entity in its name, barring any special circumstance, the council of occupants' representatives shall be deemed to have exercised its right, unless the council of occupants' representatives claims a repair of defects on behalf of the sectional owners, or the sectional owners cannot be deemed to have exercised their right to claim a repair of defects through the council of occupants' representatives (see Supreme Court Decisions 2010Da2729, Mar. 10, 201; 2009Da34405, Mar.

The court below acknowledged that the plaintiff, the council of occupants' representatives of the apartment of this case, originally filed a lawsuit against the defendant under the premise that he had the right to claim damages in lieu of the defect repair under Article 9 of the former Aggregate Buildings Act, and that the plaintiff was transferred from 665 households of the sectional owners of the apartment of this case to the defendant on January 31, 2007 the plaintiff had the right to claim damages in lieu of the defect repair that he had possessed against the defendant. The plaintiff submitted a preparatory document stating the purport of adding the right to claim damages in lieu of the defect repair that he had transferred from the 665 households of the sectional owners of the apartment of this case. The apartment of this case was delivered to the sectional owners from October 27, 1995 to November 26, 195. Since the plaintiff cannot be deemed to have exercised the right to claim damages in lieu of the defect repair of the plaintiff's own right to claim damages in lieu of the defect repair of the apartment of this case, the court below determined that the plaintiff had not exercised the plaintiff's preparatory document within 31.17.

The judgment of the court below, on the premise that the request for repair of defects made by the council of occupants' representatives cannot be seen as the exercise of the sectional owner's right to claim the repair of defects, is just in accordance with the above legal principles, and there is no violation of the misapprehension of legal principles as to the exclusion period of the exercise

Supreme Court Decision 208Da12439 Decided December 11, 2008, and Supreme Court Decision 2008Da39939 Decided January 30, 2009, which the plaintiff cited in the appellate brief, submitted a document to the effect that the council of occupants' representatives added the claim for the amount of money to the reason that the council of occupants' representatives was transferred the right to claim damages in lieu of defect repair from the sectional owners, and that the period of exclusion for ten years has not elapsed even if the apartment was calculated from the date of delivery to the sectional owners, and therefore, it is inappropriate to be invoked in the instant case, unlike the instant case.

2. Regarding ground of appeal No. 2

Article 38(16) of the former Housing Construction Promotion Act provides that the project undertaker and the owner of a building under Article 38(14) of the same Act shall repair the apartment house within the scope of 10 years and compensate for damages caused by the occurrence of a serious defect in the portions of proof-stress structure of the apartment house. Meanwhile, Article 16-2 of the former Decree on the Management of Multi-Family Housing provides for the defect repair period by proof-stress structure under Article 38(16) of the former Housing Construction Promotion Act and the scope of the defect. The period of defect repair by proof-stress structure shall be 10 years and 5 years, respectively, and the scope of the defect shall be determined by the owner of the apartment house as a result of safety diagnosis under Article 16-3(1) of the former Decree on the Management of Multi-Family Housing. Therefore, the owner of the building and the owner of the building are liable to compensate for the defect within the scope of 16-2 period determined by the Ordinance on the Management of Multi-Family Housing.

Examining the reasoning of the lower judgment in light of the record, the lower court rejected the Plaintiff’s assertion that the Plaintiff acquired the right to claim damages from the sectional owners of the apartment in this case, on the following grounds: (a) the five-year and ten-year defects prescribed in Article 38(16) of the former Housing Construction Promotion Act and Article 16-2 of the former Decree on the Management of Multi-Family Housing; (b) the sectional owners of the apartment in this case filed a claim for damages under Article 38(16) of the former

The judgment of the court below is just in light of the above legal principles, and there is no error in the misapprehension of legal principles as to the liability for damages under Article 38 (16) of the former Housing Construction Promotion Act, since the defects in the apartment of this case did not constitute a serious defect under Article 16-2 of the former Decree on the Management of Apartment Houses.

3. Conclusion

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

Justices Park Si-hwan (Presiding Justice)