건축하자의 개념에 대한 소고

Abstract

This article has explicated on the premise that it required reconsidering the concept of construction defects as a way to settle the problem with the construction defects. A Problem-Solving begins with a different view on legal nature of the Liability for Warranty. In recent years, the theory of Liability for Breach of Contract has been given scholarly considerable attention. From the above perspective, it is difficult to discriminate the subject of application category to defects in Liability for Warranty from defaults in Liability for Breach of Contract. The explication shows that the purpose of Liability for Warranty may be lost its meaning, including that could be made to Cumulative or Selective application in between Liability for Warranty -principle of No-fault liability- and Liability for Breach of Contract -principle of Fault liability-. These considerations lead me to conclude that it should be revising a related law and developing theory of analysis, by means of understanding that Liability for Warranty is Legal Liability in which specially accord a responsibility to the subject in Law. Regarding the construction defects, drawing on relative regulations in korea, type of defects are applied to liability for warranty periods differently : defects in structural parts, main process and defects in construction equipments, non-main process. These interpretations would result in disregard for seriousness of defeats, it is hard to avoid the question about applicability of the right to defect repair. That is to say, these interpretations have problems in terms of legal logic while considering of this : the possibility for execution of a right of claim for defect repair, which is the core of regulations on Liability for Warranty in Korean legal systems, could be restricted. In conclusion, the same criticism could be possible on the Supreme Court. Because the Supreme Court have held that regardless of seriousness, the defects in structural parts would be subject of application of liability for warranty for 10-year periods. Therefore, regarding not only aspect of a Problem-Solving but also aspect of a legal logic, it seems for the Supreme Court to need to change the precedents.