공동주택의 하자에 있어서 하자보수우선의 원칙에 대한 고찰 = The Study of the Priority Principles of Repairing the Defects of Multi-Family Housing

다국어 초록 (Multilingual Abstract)

In the case of an non-performance of a contractual obligation, the first remedy is the enforcement of the performance, rather than damages or termination of the contract. This is called the priority principle of the right to performance.
Although the warranty liability for the defects of multi-family housing is not the contractual liability, repairing the defects is more desirable than the damages or the termination of contract. Unfortunately, the articles of contract for work in Korean Civil Act stipulates that it is up to the contractor to decide which will be the first remedy among the repairing the defect or damages for defects and the Korean Condominium Act stipulates that the articles of warranty liability of KCA shall apply mutatis mutandis to such warranty liability of defect in condominium. As the multi-family housing is one kind of a condominium, the unit-owner of the multi-family housing can choose the remedy for the defects of building whichever he/she wants.
However, the priority principles of right to the performance should be applied to the remedy for the defect of multi-family housing. In other words, the remedy of damages should be allowed only when it is unreasonable to expect the repairing the defect of the building or when the developer refuses the repair. Therefore, in order to claim damages in lieu of repairs of defect of the building, the unit-owner of the multi-family housing should ask the developer to repair the defects of the building for a reasonable period of time, and only if the defects are not repaired within that period, the unit-owner can claim the damages for repairs. But if the defect is not repairable, or the defect is not serious but requires a lot of money for repair, or if it is difficult to expect developer to repair the defect, or if the developer refuses repairing of defects, the unit-owner can claim the damages for the defects without giving the developer the additional time for repairing the defects.
Under the current law, the unit-owner can demand the developer to repair the defects in common area of condominium or claim damages. However, it is reasonable for the remedy for defects in common area be exercised by the association of the unit-owner or by the council of occupants' representatives delegated by the unit-owners.

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