도급계약상 하자에 불완전이행책임 경합시 법적 쟁점: 잠수함의 하자에 대해 배상하여야 할 손해와 관련하여 -대상판결 : 대법원 2020.6.11. 선고 2020다201156 판결-

The target judgment(2020da201156) affirmed the liability for default in the case where the period of claim exclusion of the warranty for defects in the subcontract has expired. This is a reasonable conclusion based on the position that the Supreme Court previously recognized the contention between liability for warranty and liability for default, but there is an unclear problem as to whether some unique legal principles, such as the provisions of liability for warranty, can be equally applied. First of all, the warranty for defects in a contract is viewed differently as “compensation for damages in lieu of compensation for defects” and “compensation for damages due to defects” based on whether the right to claim repair for defects can be recognized. The judgment was made without reference to the criteria. Although this is a result of considering ‘the pleading principle’, the purpose of the regulation to distinguish the scope of damage compensation for defect liability under the subcontract articles seems to the unique characteristics of the dispute in the subcontract rather than simply the reason for no-fault liability system. In the case of claiming damages, so it is appropriate to consider this distinction in case of claiming the default liability. Furthermore, although this was not a problem in the target judgment, problems such as applying restriction on cancellation of the contract (Article 668) may occur, and It is also necessary to apply the same restriction as originating from considerations of the economic value of the workpiece (like building). In the future, it is expected that a more advanced discussion will develop whether the legal principles unique to the subcontract can be equally applied in the case of a contention between the warranty liability and the default liability.