공동주택관리법의 하자담보책임과 제척기간 재검토

Construction activities form a major pillar of economic activity, and the rise and fall of the construction market have significant social and economic impacts. Buildings, which are widely and usefully utilized throughout our society, exert considerable influence on the property and safety of the general public. Today, about 70 percent of the Korean population reside in multi-family housings, and the costs associated with their management—such as maintenance fees, utility charges, and long-term repair reserves—amount to approximately 11.6 trillion won annually. As such, the importance of multi-family housing management is greater than ever before. However, it is true that numerous complaints and disputes arise concerning the composition and operation of the residents’ representative council or the self-governing body for multi-family housing management—as well as issues related to management fees. In addition, the systematic management of various facilities within multi-family housing is insufficient, making it difficult to establish a foundation for the safe and long-term use of such housing. Therefore, the need has arisen to support the management of multi-family housing in a more professional and systematic manner. However, the current Housing Act encompassed construction, supply, management, and financing of housing as a whole, and thus had limitations in providing systematic and efficient support for the management of multi-family housing. To address this, the Central Multi-Family Housing Management Dispute Mediation Committee was newly established to respond more effectively to disputes and to support dispute resolution. In addition, in order to provide proactive support for multi-family housing management, designated support organizations were introduced, and the overall management system was restructured. At the same time, the provisions of the existing Housing Act related to multi-family housing management were separated and certain operational shortcomings were supplemented. As a result, a separate specialized law on multi-family housing management was enacted—the Multi-Family Housing Management Act—under Act No. 13474 on August 11, 2015, and has been in effect since August 12, 2016, with the purpose of ensuring systematic, efficient, and professional management of multi-family housing. However, the original intent of the defect liability system under construction-related laws and their enforcement decree was to impose responsibility on the project entity (contractor) to repair defects that arose in multi-family housing during the defect repair period prescribed by law. This system was first established under Housing Construction Promotion Act, the predecessor of Housing Act. However, with legislative changes such as the 2005 amendment to the Housing Act and the 2012 amendment to the Act on Ownership and Management of Condominium Buildings, along with the development of Supreme Court precedents, the obligation to repair defects has tended to be transformed into liability for damages in lieu of defect repair. Consequently, it has been pointed out that considerable confusion has arisen in defect-related litigation today. As a preliminary issue, the defect liability period for apartments or row houses, which fall under both multi-family housing and condominium buildings, presents interpretive problems. This is because, under construction-related laws—namely, the Multi-Family Housing Management Act and the Act on Ownership and Management of Condominium Buildings—the responsible parties, the scope of liability, and the duration of defect liability sometimes overlap or conflict each other. Accordingly, it is necessary to clarify the legal nature of the defect liability period for multi-family housing. Furthermore, Article 36(3) of the Multi-Family Housing Management Act specifies the starting point of the defect liability period, stipulating, in detail, the commencement point for exclusive-use portions in subparagraph 1 and for common-use portions in subparagraph 2. In the case of exclusive-use portions under Article 36(3)(i) of the Multi-Family Housing Management Act, the starting point is the date of delivery to the occupant or to the tenant pursuant to Article 36(2). However, with respect to the defect repair guarantee period, Article 38(1) of the Multi-Family Housing Management Act provides that the guarantee period is calculated based on the common-use portions. Accordingly, the commencement point is determined in accordance with Article 36(3)(ii) for common-use portions, which applies the date of use inspection or use approval. This may lead to situations in which residents of exclusive-use portions are unable to obtain remedies from the project entity or the guarantor, even though they exercise their rights—such as making a defect repair claim—within the defect liability period. For example, when the construction company delays or refuses defect repairs, the institutional purpose of requiring the project entity to deposit a defect repair guarantee fund during the liability period—so that it may be used to cover necessary repair costs—can be undermined. This is because the guarantee period for the defect repair fund is calculated based on the common-use portions, which conflicts with the starting point based on the date of delivery for residents of exclusive-use portions, thereby giving rise to inconsistencies and potential problems. Therefore, as a core means of protecting the rights and interests of residents, it is necessary to reconsider the role of the defect repair guarantee system as a safeguard that ensures residents can rightfully obtain protection of their rights even when the construction company delays or refuses to carry out defect repairs. By presenting solutions to this issue, it is expected that stronger protection of the rights of multi-family housing residents and owners will be achieved as an anticipated outcome.