중대한 하자 있는 건물도급인의 권리

대법원 2003. 11. 14. 선고, 2002다2485 판결(公2003下, 2329)을 소재로

The Korean Civil Code(hereafter, shortly KCC) provides as follows(art. 668): “If, by reason of some defect in the finished work, it cannot be used for the purpose for which it was ordered, the party who ordered the work may rescind the contract. However, this shall not apply with regard to any building or other structure on land.” Thus, most legal writers used to deny a customer s right to rescind, however serious the construction defect should be. Lately the Korean Supreme Court declared in a case(2002Da2485) that the above provision should not apply to the build-and-sell contract of condominiums, firstly for the buyer as a consumer usually deserves more protection, secondly for the seller as a land owner need not break down the structure even after the contract is rescinded because of some serious defect, and thirdly for another new contract could be thereafter entered into with the third person. Shortly, the Court escaped the application of art. 668 KCC, by contrasting the build-and-sell contract as a mixed contract with a contract for work in a genuine sense. For that reason, it should be scrutinized how far the scope of the judgement reaches in the future. This study aims to explain the remedies available to the buyer-customer tendered a seriously defective structure by the seller-contractor, taking the unfortunate legal text of art. 668 KCC into consideration. The conclusion is that the buyer could have almost the same remedies ―via rights to cure as well as to damages(managed in practice as de facto price reduction)― under the current system as when art. 688 KCC were done away with. Hence, the buyer-customer maintains his right to cure until the conforming structure has been tendered, how much the cure should cost because of the seriousness of its defects(art. 667 KCC). In addition, he is entitled to damages based on the cost of cure when the tendered structure has no value at all, which has been explicitly declared by the Japanese Supreme Court in 2003. As proposed by the Reform Committee of KCC last year, art. 688 KCC is designated to abolishment; the Committee is said to justify the abolishment on the ground of difficulties concerning the distinction between the yet unfinished structure and the finished but defective one. By the way, the abolishment would never promise perfect settlement; rather it could bring forth new legal disputes.