집합건물법상 시공자의 하자담보책임과 소멸시효의 문제 - 대법원 2023. 12. 7. 선고 2023다246600 판결을 소재로 -

The contractor's liability for defects under the Condominium Act was first introduced into the Act through its 2012 amendment. As contractors became the primary subjects of defect warranty liability under the Act, legal questions arose regarding the relationship between the defect warranty liability recognized by the Act and that recognized under individual contractual relationships. Our Supreme Court resolved these issues by progressively developing case law principles. Through this development of case law principles, it was clarified that the defect warranty liability under the Condominium Act is not a liability based on the contractual framework to resolve defects in the condominium building. Rather, it is a liability specifically recognized by the Condominium Act to address the social problem of defects arising in the condominium building, separate from the individual contractual relationships. Nevertheless, because each contracting party involved in defects of the building - namely, the contractor and the developer warranty liability for defects to their respective counterparties under their own contractual relationships. The relationship between the warranty liability recognized under the Condominium Act and the warranty liability owed to counterparties under these individual contractual relationships became an issue. Particularly, following the 2012 amendment to the Condominium Act, which made the contractor a subject of warranty liability, the legal relationship between this liability and the warranty liability the contractor bears to the developer under the construction contract became a matter of concern again. Our Condominium Act recognizes special warranty liability for defects for both the contractor and the developer, stipulating that this liability is an independent responsibility separate from the warranty liability recognized under each contractual relationship. Nevertheless, the defect warranty liability that the contractor bears toward the developer under the contractual relationship also pertains to defects in the same condominium building. If the contractor has already fulfilled this liability to the developer through compensation for damages, bearing the defect warranty liability under the Condominium Act again would lead to the so-called problem of double compensation. To resolve this issue, the Condominium Act has already established specific provisions in this regard. However, in cases not covered by these provisions - specifically, when the contractor's warranty liability to the developer has been extinguished due to the extinctive prescription. Legal questions may arise regarding how this contractual framework affects the warranty liability recognized under the Condominium Act. The subject precedent is significant as the first to explicitly address this issue. It indirectly suggests that contractual frameworks should only affect warranty liability under the Condominium Act to the absolute minimum extent necessary. However, situations where contractual frameworks could affect warranty liability under the Condominium Act may still arise under the current Act. To resolve this, legislative efforts are ultimately needed to clearly establish the relationship between contractual frameworks and warranty liability under the Condominium Act.