Title The Harmony and Moderation of Between Defect Liability and Default Liability in the Construction Contract
Authors Ahn, Sanghyo ; Sin, Manjoong
DOI https://dx.doi.org/10.6106/KJCEM.2022.23.2.065
Page pp.65-75
ISSN 2005-6095
Keywords Strict Liability; Defect Liability; Default Liability; Exclusion Period; Extinctive Prescription
Abstract On 11 June 2021, the Supreme Court ruled that the judgment of the lower court was justified for the subject case, that the plaintiff could assert the defendant's liability for default due to incomplete performance even though the warranty period for defects which stipulated in the particular condition of the contract has expired. In Korean civil law, the concurrent between the exclusion period for defect warranty and the extinctive prescription for default liability is conceded, since the exclusion period and the extinctive prescription have their respective purposes in law, therefore these two should be judged by harmonizing them based on that they are mutually related. If the subject judgment is generalized, there is no reason to exist for the provisions of defect liability in the construction contract any longer. This study examines the subject judgments through the general theory and precedent case studies on the defect liability and default liability, then derived any problems that may arise if the subject judgment is generalized. In addition, based on a realistic model, it was suggested for a practical improvement method that both the provisions of the warranty period shall be changed realistic and to stipulate the character of its nature as written provisions in the contract.