Warranty Liability Research Articles

The history and evolution of warranty liability of apartment complexes

Regulations on defects in multi-family housing are stipulated by two positive laws: the Act on Ownership and Management of Condominium Buildings and the Multi-Family Housing Management Act. However, the characteristics and purpose of these two laws differ. The Multi-Family Housing Management Act is a public law securing the constitutional rights to housing, which includes administrative laws on the construction of housing (e.g., the Housing Construction Promotion Act) and those related to the management of housing (e.g., the Housing Act and the Multi-Family Housing Management Act). However, the Act on Ownership and Management of Condominium Buildings is a private law merely focusing on the property rights of condominium owners. Therefore, the stipulations of these two positive laws regarding defects in multi-family housing also differ in many aspects, such as the types of defects, standings to claim repair, distribution of responsibility, and statutory limitations. However, the legal aspect remains ambiguous, despite the gap being narrowed through several rounds of enactment and amendment to positive laws. In particular, the meaning of the project implementer's defect repair responsibility, which must be understood from a public law perspective, has been considerably ambiguous. Consequently, for defects in multi-family housing, the focus is merely on monetary compensation for defects, which is a matter of private law, rather than on the implementation of defect repair itself, which is a matter of public law. Accordingly, this study examines the problems related to the repair of defects in multi-family housing by analyzing the history of these positive laws, their detailed stipulations, and the differences in defect warranty liability. Based on these analyses, this study attempts to identify and suggest solutions to overcome these issues.

집합건물의 공용부분에서의 수익금의 분배 및 대지권 미등기 상태의 아파트 경매에 관한 소고

To summarize the main points of the author's argument, the following are the key points.
 First, it is reasonable to view the act of the managing body of condominium building seeking unjust enrichment against an unauthorized occupant of the the section for common use of condominium building an act of management. Therefore, in order for the managing body to exercise the right to unjust enrichment, it must meet the requirements of resolution of the managing body’s meeting.
 Second, if the managing body is viewed as a litigator for the division ownership holder, it is reasonable to assume that the Res Judicata over the division ownership holder's claims subordinate the managing body.
 Third, a division ownership holder must have a resolution of the unit owners' meeting in order to claim a share of the profits from the the section for common use of condominium building from the managing body.
 Finally, if a purchaser at an auction pays the price including the section of exclusive ownership of condominium building and the right to use site as the auction price, but only acquires the he section of exclusive ownership without the right to use site, the purchaser may claim that the auction price for the right to use site is unjustly enriched from the enforcement creditor and may claim warranty liability against the debtor under Article 578 of the Civil Code.

오염된 토지, 특히 폐기물이 매립된 토지와 하자담보책임

In the contract of sale, warranty liability for defects has the character of incomplete performance in that the original obligation was not fulfilled and according to the general principle of compensation for damages, it is reasonable to regard the contents of damages as defect warranty liability as performance gains. For this reason, recently, the Supreme Court, through the Supreme Court's decision 2017da202050 Decided April 8, 2021(hereinafter referred as ‘the Judgement’), made a ruling in the case of the sale of land where wastes were buried, even if the seller was not at fault, the amount of waste disposal costs that exceeded the purchase price was clearly recognized as damages according to warranty liability for defects. This is meaningful in that it was revealed that the scope of compensation for damages under warranty liability for defects in the sale of specific goods could reach the performance benefit separately from the fault of the seller. However, it would have been a more faithfully reflected judgment if it had been judged together with the calculation of the scope of damages on whether the principle of equivalence still plays its role in calculating damages under warranty liability for defects. In particular, in view of the fact that warranty liability for defects is operated as a seller's no-fault liability in principle, it would be a fair and faithful interpretation to consider that it is possible to adjust the scope of compensation for damages under the principle of good faith in consideration of the buyer's responsibility for the occurrence of defects. Such an interpretation of warranty liability for defects will play a role in drawing attention to the seller's obligation to provide warranty against defects in the object of sale, especially in cases involving environmental issues such as waste landfill.

Damages Regarding Warranty Liability in Sales of Specific Goods - Review of the 2017Da202050 Decision(April 8th, 2021) of the Korean Supreme Court -

Damages Regarding Warranty Liability in Sales of Specific Goods - Review of the 2017Da202050 Decision(April 8th, 2021) of the Korean Supreme Court -

Comparative studies of available relief for defective aircraft and grounding losses under the legal regimes in China and the U.S.: product tort liability or contractual warranty liability?

ABSTRACT Two crashes of Boeing 737 MAX aircraft in 2019 resulted in the total grounding of all 737 MAX aircraft worldwide. The issue of grounding losses and available relief has attracted widespread attention. From a legal perspective, such losses, which include aircraft devaluation, operating losses, and added costs, constitute pure economic loss. Both Chinese and U.S. law provide for remedies for defects in a sales contract’s subject matter. Under U.S. law, pure economic losses are claimable only by way of a contractual claim. In China, however, current tort law allows for relief for losses other than those arising from aircraft devaluation/losses. Under the Chinese Civil Code, any exemptions stipulated in an aircraft sales contract on grounding losses arising from an aircraft manufacturer’s intentional or grossly negligent acts are invalid. Given the differing regimes in China and the U.S., aviation product liability insurance is an alternative relief channel for grounding losses, for which airlines, under certain circumstances, can directly file a claim with insurance companies. Consequently, characterization of grounding losses as a product tort liability or a contractual warranty liability shall impact on the determination of court jurisdiction, disputing parties and applicable law in the litigation process.

건설산업기본법상 하자담보책임기간에 관한 강행규정성 고찰 - 건설산업기본법 시행령 제30조 2항의 강행규정성 여부를 중심으로 -

A contract for construction work is a bilateral contract in which each party promises to make a certain payment and bears a debt with a mutual meaning of consideration. In other words, the contract must be concluded according to the agreement of the parties in an equal relationship, and the contents must not be significantly contrary to 'good customs and other social order' or 'fairness'. In principle, if the contents of the contract violate good customs or other social order, or if it greatly impairs mutual fairness, the provision will not take effect. The Framework Act on Construction Industry, which falls under the Framework Act on Construction, is a law that stipulates all matters related to construction work and construction, and is the predecessor of the Construction Business Act enacted by Act No. 3501 in 1981.Therefore, the purpose is to determine basic matters related to investigation, design, construction, supervision, maintenance, and technology management of construction works, and to promote appropriate construction and development of the construction industry. On the other hand, in public construction contracts under the guise of the 'principle of private autonomy', unfair acts resulting from the relationship between A and B frequently occur. Even in this case, it is difficult to fight against this situation, and some contractors pass on the unfairness to their subcontractors, and the lowest class becomes the biggest victim of the unfairness. Since the Framework Act on the Construction Industry is basically a law enacted to regulate construction companies, if one of the contracting parties is not a contractor or orderer, there is no penalty clause that can sanction an unfair act even if it occurs. In addition, as the agreement between the parties is applied before the Framework Act on the Construction Industry, which is a special law of the general civil law or a special law of the civil law, it often provides the cause of unfair conduct. In addition, due to the negative effects of the relationship between A and B, there is of course a limit to the refusal of all unfair acts by the contracting party, who is comparatively inferior to the ordering party in the case of a construction contract. Although the contracting party is generally fully aware of the injustice in advance, it is often necessary to endure it due to its economic status, effectively nullifying the effectiveness of the provisions to prevent unfair acts stipulated in the Framework Act on the Construction Industry. Therefore, it is necessary to specifically and explicitly stipulate the case that falls under a remarkably unfair act in which there is an objectively large imbalance between benefits and benefits in return, etc., so that the compulsory nature can be easily identified. In accordance with Article 30 (2) of the Enforcement Decree, if the period of warranty liability is set separately and the provisions of the law stipulating 'the cause and additionally incurred defect guarantee fee' are violated, the effect of the relevant matter will not take effect. In order to do this, it would have to be specified by supplementing the clause that 'in case of violation of this, it is invalid'. In addition, it would be a way to secure legal stability to legislate as exemplary and specific regulations rather than regulations that can be interpreted enumeratedly, and to stipulate them in laws that are difficult to change rather than enforcement ordinances and enforcement rules.

건축물 하자담보책임제도에 관한 관련법령 및 실태분석을 통한 개선방안

Proper management of building’s defects plays a very critical role in keeping of building’s quality and durability. As it is well known that effective measures to enhance defective warranty liability have not been properly implemented although they are a very urgent and serious issue in real life, this study analyzes four relevant legislations that contain provision of defective warranty liability and approx, 88,000 defect data issued by the Construction Guarantee between 2000 and 2020. Through analyzing relevant legislations, it is confirmed that the institutional basis for effectively resolving disputes between rights holders and obligers was weak due to the complexity of the relation between two parties and absence of definitive rules and process for settlement in current laws. With the analysis of actual cases over the 20 years, the study finds out that there are a few critical defects staus, such as the average ratio of defect occurrence (21.8%), average amount of defects (96 M; KRW), and solving period (696 days). It takes a significant long time (696 days) to solve the defects problem although they are very common in real life. As an alternative to solve this problem, the establishment of a defect definition regulation, establishment of a defect determination system, and operation of a defect repair center have been proposed in the Framework Act on the Construction Industry.

기업인수계약상의 진술 및 보장에 따른 하자담보책임

기업인수계약상의 진술 및 보장에 따른 하자담보책임

A Study in the Systemized Consistency of the Warranty Liability for Defects in the Multi-Family Housing Management Act and Act on Ownershup and Management of Condominium Buildings

A Study in the Systemized Consistency of the Warranty Liability for Defects in the Multi-Family Housing Management Act and Act on Ownershup and Management of Condominium Buildings

Trend of Defect Occurrence Between Painting Work and Finish Work in Apartment Building

In Korea, defect disputes regarding apartment buildings are becoming social issues. In particular, the term of warranty liability, which is an important criterion for defect disputes, lacks sufficient groundings for its establishment, leading to increased number of conflicts about the timing of defect occurrence as well as responsibilities for the defects. In the present research, we compare the trend of defect occurrence between painting work and finish work in apartment buildings during the last ten years to determine the validity of the current term of warranty liability. As a result, defect occurrence in painting work occurs from the first year to the fifth year. This trend is different from the finish work as a whole and also from the work which has one or two years of the term of warranty liability. Therefore, we recommend establishing a separate criterion for the term of warranty liability of painting work, which is different from other types of finish work.

공동주택의 하자담보책임에 관한 연구 - 집합건물법과 공동주택관리법의 하자담보책임기간 해석을 중심으로 -

공동주택의 하자담보책임에 관한 연구 - 집합건물법과 공동주택관리법의 하자담보책임기간 해석을 중심으로 -

Exercise Period of right of Warranty Liability and its Commencement

Exercise Period of right of Warranty Liability and its Commencement

Basic Study on Term of Warranty Liability for Roofing and Waterproofing Work Defect in Apartment Building

Basic Study on Term of Warranty Liability for Roofing and Waterproofing Work Defect in Apartment Building

임대 후 분양전환된 집합건물의 하자담보책임에 관한 연구 : 2013. 6. 19. 이후 분양전환된 아파트를 중심으로

임대 후 분양전환된 아파트의 하자담보책임의 경우, 개정 집합건물법 시행 전에 시공되어 임대되었다가 분양전환까지 마친 경우라면, 분양전환 받은 구분소유자는 개정 전 집합건물법을 근거로 하여 사업주체에게 하자담보책임을 물으면 된다. 그런데 개정 집합건물법 시행 전에 아파트를 시공하여 임대하였다가 개정 집합건물법 시행 후 분양전환된 경우, 분양전환 받아 아파트에 입주한 구분소유자들이 아파트에 존재하는 하자에 대해 사업주체(매도인)를 상대로 하자소송을 제기할 때, 개정 전 집합건물법을 적용해야 하는지 개정 집합건물법을 적용해야 하는지 문제된다. 관련하여 하급심 판례는 분양전환을 고려해 개정 집합건물법을 적용하여 하자담보책임이 제척기간 도과로 소멸하였다고 판단하기도 하고, 해당 임대아파트의 사용승인 당시 적용되던 집합건물법(개정 전 집합건물법)을 적용하여 판단하기도 하는 등 엇갈린 판결을 내놓고 있다.BR 생각건대 집합건물법의 제정 및 개정 취지, 분쟁의 통일적·일회적 해결, 소급입법에 의한 재산권 침해 방지, 후 분양 아파트에서도 구분소유자의 하자담보추급권을 충실히 보장하려는 판례의 태도, 임대아파트에 거주하는 임차인의 경우 입주 후부터 사업주체에게 스스로 권리를 행사하는 일반분양 아파트의 구분소유자들 보다 권리 행사에 장애가 있는 점, 임대아파트의 임차인이 가지는 보수청구권은 구분소유자의 하자담보추급권에 비하여 두텁게 보장되고 있지 않는 현실 등을 고려할 때, 개정 전 집합건물법 시행 당시 사용승인을 득하였다가 2013. 6. 19. 이후 분양전환된 집합건물의 경우도 해당 집합건물의 인도(사용승인) 당시 시행 중이던 법, 즉 개정 전 집합건물법을 적용하여 구분소유자가 가지는 하자담보추급권을 좀 더 두텁게 보호할 필요가 있다.

The Warranty Liability of Condominium

민법은 계약관계에서 일방이 하자있는 급부를 제공한 경우 채무불이행책임과 별도로 매도인의 담보책임을 규정하고 있다. 마찬가지로 공동주택에 있어서도 ‘주택법’ 및 ‘집합건물의 소유 및 관리에 관한 법률’, ‘공동주택관리법’ 등에서는 수분양자를 보호하기 위한 하자담보책임을 규정하고 있다. 그런데 공동주택의 계약관계는 보통 선분양제도라는 특수한 형태로 체결되는 것이 일반적이다. 또한 하자가 발생한 경우 구조적으로 다른 부분에 영향을 미치고, 신속·간단히 수선할 수 없다는 특수성이 존재한다. 결국 이런 특수성에 말미암아 집합건물의 하자소송은 거주민의 주거생활의 안전에 직결되어 그 책임소재를 정확히 파악하는 것이 중요한 것이다. 본 논문에서는 분양계약의 법적성격과 그에 따른 하자담보책임의 내용에 대해 살펴보았다. 그 과정으로 집합건물법의 부칙의 ‘분양된’의 의미를 파악하였고 또한, 분양계약의 법적성격에 관한 학설과 판례를 검토하였다. 이에 아파트분양계약은 공동주택의 완성을 의뢰하는 계약과 그 완성된 공동주택을 구입하는 두 가지 계약의 결합이라고 해석하여 분양면적이 실제와 차이가 있는 경우에는 매매계약상의 담보책임(제574조)이 적용될 것이고, 목적물에 하자가 발생한 경우에는 하자보수에 관한 도급계약상의 담보책임(민법 제667조) 역시 적용될 수 있다고 하였다. 이후 하자담보책임의 내용으로 하자의 개념, 계약해제권, 하자보수청구권, 손해배상청구권, 하자책임기간을 살펴보았다. 하자담보책임의 규율 내용인 하자의 발생과 존속기간, 권리행사기간, 청구권자와 하자의 범위 등은 국민의 재산권에 직접적인 영향을 주게 됨에도 불구하고 하자책임의 모든 부분을 대통령령으로 포괄적으로 위임하도록 하고 있는 점을 들어 입법적 해결을 통하여 합리적인 범위에서 조정되어야 할 것으로 생각되지만, 법 개정이전 까지는 현재의 공동주택관리법과 집합건물법상의 규정에 의하여 수분양자는 하자보수, 손해배상, 계약해제 등의 권리구제방법을 행사할 수 있는 점을 들어 해당 내용을 요약하였다. 본고는 집합건물에 관한 하자담보책임제도의 올바른 실현을 위해 법제도적 뒷받침을 위한 참고가 되었으면 한다.

A study for comparative law on collective building’s warranty liability - Focusing on analysis of judicial precedent on collective building’s warranty in America -

A study for comparative law on collective building’s warranty liability - Focusing on analysis of judicial precedent on collective building’s warranty in America -

Issues pertaining to dissemination of the Housing Defect Warranty Liability Insurances for existing houses

Issues pertaining to dissemination of the Housing Defect Warranty Liability Insurances for existing houses

Basic Study on Term of Warranty Liability for Miscellaneous Work

In Korea, defect lawsuits for apartment buildings, the most common housing style, are becoming a social issue. Among various issues in defect lawsuits, warranty of liability is very important. This is because the business entities are responsible for assuring the maintenance of the defects during this period, and at the same time, the residents can request fair compensation for the defects. However, provisions on the term of warranty of liability provided in the current Housing Act were made 40 years ago when the social basis were weak. Thus, it does not have any rational foundation. In order to improve these problems, basic research on the warranty of liability by major types of apartments is needed. In this study, the defect cases for miscellaneous works of apartments were examined and analyzed. Miscellaneous work consists of ondol work, kitchenware work, indoor and outdoor equipment work, and metallic work. Among them, kitchenware work and metallic work showed a lot of defects. On the other hand, warranty of liability covers up to 10 years in total. The defect occurrence for the entire miscellaneous work showed a tendency to concentrate in the first and the second year. It is the third year that the total defects reach 95%, and the fourth year that exceeds 99%. The ondol work, indoor and outdoor equipment work and metallic work had this tendency. On the other hand, for kitchenware work, it is the third year that the defect occurrence reaches 99%, and it implies that the defect tends to occur more quickly than in other detailed works.

공동주택 마감공사의 하자보수기간 현황 및 연관성 연구

공동주택의 공종별 책임 하자 보증기간은 과학적인 분석에 근거를 두지 않고 있어. 기간의 적절성이 분쟁의 원인이 되고 있다. 이에 따라 본 연구에서는 2010~2011기준 국토교통부 하자심사 분쟁조정위원회에 접수된 하자제기건수 중 공동주택 하자 중 가장 많이 제기된 마감공사의 하자실태를 파악하여 하자보수기간의 적절성을 평가하고자 하였다. 마감공사의 하자청구건수를 분석한 결과 대부분의 공종별 하자는 2년 이후에도 나타나고 있으며, 60% 정도만이 하자담보책임기간 내에 청구되고 있는 실정이다. 공종별 하자는 상호간에 연관성을 가지고 있으며 이러한 점은 시공의 관리 차원에서 고려되어 공법의 개선이 필요한 것으로 나타났다. 공동주택의 선호도에 큰 영향을 끼치는 시공능력평가 순위와 하자발생의 상관성이 낮은 것으로 보아 실제 수행하는 전문업체의 하자관련 검증 절차가 필요한 것으로 판단된다. The warranty liability period for defects in apartment buildings by work type is not based on scientific analysis, making the appropriateness of the term a culprit behind the lawsuits. Therefore, this research aims to evaluate the appropriateness of the warranty liability term of apartment buildings by identifying the current status of defects, in particular, caused by finishing works. That is because the number of defects, caused during the finishing works, accounted for the largest portion of the total defect cases of apartment buildings reported to the Apartment Defect Dispute Mediation Committee under the Ministry of Land, Infrastructure, and Transport of Korea between 2010 and 2011. The result from analyzing claims for defect repairs of the finishing works showed that most cases by work type continued to be made after two years, and only about 60% were charged within the warranty period. And, defects by work type have correlation, which needs to be considered for a better construction technique. Considering a low correlation between the possibility of defects and the construction performance rankings, which are highly relevant to the apartment preference. It is believed that there needs to be a qualification process for agencies that actually performs finishing works.

La protección al consumidor inmobiliario. Aspectos generales en el derecho colombiano

La protección al consumidor de vivienda nueva tiene matices especiales en el derecho colombiano que ameritan su estudio. El presente artículo tiene como objetivo delinear los aspectos fundamentales de la normatividad jurídica que, a la par de las normas tradicionales del derecho privado, protegen al consumidor inmobiliario en el contexto colombiano. Para tal fin, este escrito se centra en un estudio normativo con miras a identificar las principales características de este ámbito de protección en subtemas de protección al consumidor como la obligación de información, la publicidad engañosa, la obligación de garantía, las cláusulas abusivas y la responsabilidad por producto defectuoso.