집합건물 시공자의 구분소유자에 대한 하자담보책임의 범위와 한계

Article 9 of the Condominium Building Act stipulates that while the constructor is directly liable for defects to the setional owner due to insolvency or other grounds equivalent thereto, if the constructor has already compensated the seller for damages, the constructor’s liability for defects to setional owner is exempted. The legal nature of the constructor’s liability for defects toward the setional owner is one of statutory liability and inherent liability, where design defects are excluded from the scope of the constructor’s defect liability, and regardless of contract concluded between the seller and the setional owner, the constructor assumes defect liability based on the contents of the construction contract agreed upon. The limits of the contractor’s liability for defects to sectional owner depend on the interpretation of the latter part of Article 9, Paragraph 3 which states, “If the contractor has already compensated the seller for damages,” and ultimately, this is a matter of reasonable adjustment of interests among sectional owners, sellers, and the constructor. While the constructor can assert a setoff against sectional owner by way of a setoff against the seller, the abuse of this right of setoff must be considered. While a defect warranty waiver agreement between the contructor and the seller entered into after the seller’s insolvency occurred is unlikely to be valid in relation to the sectional owner, if the risk of the seller’s insolvency has not specifically occurred, it is reasonable to determine the validity of the waiver agreement by comprehensively considering the damages caused by the defect and the benefits accrued to the sectional owner through the replacement construction, from a specific validity perspective.