집합건물 신축시공자에 대한 구분소유자의 하자담보책임 추급가능성

초록

Owing to s. 9 (1), Act on Ownership and Management of Condominium Buildings(before amended by Act No. 11555, 18. Dec. 2012), a person who constructs and parcels out an aggregate building(hereafter ‘a developer’) shall bear warranty liability vis-à-vis her/his client. In the commented case, the Korean Supreme Court decided whether a constructor shall also bear the same liability as a developer when she/he signed a contract with the developer but only to build a defective building. Though the plaintiff claimed in the pleadings that the constructor controlled every steps of parcelling out as well as constructing or that she/he played at least a developer’s role, the Court dismissed the claim on the ground that only the developer shall bear such a liability unless she/he assumed duty of ownership transfer. Pointing out that the judicial activism in the Court’s decision 2011Da47733 decided February 11, 2003 did not apply to this case, this article scrutinizes possibilities for a sectional owner to assert her/his right vis-à-vis a constructor, not a developer who is often financially vulnerable in reality. First, the jurisprudence of 2011Da47733 was developed further into combination with oblique actions(subrogation actions by creditors), which is usually utilized in practice, with the result that the right to ask defects liabilities always go together with the ownership. Next, introduced is the new Japanese case that admitted a constructor's direct torts liability to a sectional owner if she/he is responsible for defects spoiling the fundamental safety of a building, and examined is what we can learn from the case. Lastly, the new Korean Condominium Act enforced on June 19, 2013, is briefly reviewed and some tasks to be solved in the future are mentioned.

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