집합건물의 하자담보책임에 관한 비교법적 연구- 미국 집합건물 보증(Warranty) 관련 판례에 대한 분석을 중심으로 -

Abstract

The ‘sales of housing prior to its completion system’ is what allows construction contractors to receive a part of the sale price for an apartment before it is completed from those purchasing an apartment. It makes it possible for construction contractors to use receipts to meet some of the constructions costs. This may increase the supply of apartments. Korea has been using this system to achieve the expansion of housing supplies and a marked quantitative rise in the private housing industry. However, there may be defects after the purchaser has moved into the unit he has bought. These defects should be fixed under this system, according to relevant laws or contracts with the construction project agent. There may be many attendant problems, such as calculating the amount of damages, setting the costs of repair for defects, the range of damages and the elements needed to ascertain where the responsibilities for damages lie. This thesis intends to examine the problems associated with the ‘sales of housing prior its completion system’ of collective buildings that center around the issues of the seller’s quality assurance and the responsibility for warranty against defects under the common law system of America and England. It is difficult to formulate a general principle that applies to the sales of collective buildings (i.e., condominiums) in America because cases related to the seller’s responsibility for damages due to defects to the sold condominium buildings are scarce. The resources on the American cases have been built based on the third edition of American Law Reports (denoted ‘A.L.R.3d’ henceforth), which reports on cases from all over the United States, as well as other commentaries and articles on legal matters. Issue ‘50 A.L.R.3d 1071’ in particular contains many cases on the condominium seller’s legal responsibility for damages due to defects. This thesis examines the legal characteristics of contracts for collective buildings under Korea’s ‘sales of housing prior to its completion system’. Then, the definition and classification of defects, the definition and classification of warranty, and the violation of warranty and its effects are scrutinized as related to quality assurance and the responsibility for warranty against defects. Finally, how Korea deals with the responsibility for warranty in its civil code is examined and compared to that of America. This is done by looking at the cases in A.L.R.3d 1071 issue 50 that deal with explicit as well as implied warranties.