전문 평가·인증기관의 불법행위책임에 관한 연구 : 과학기술 적합성 평가기관을 중심으로

劉晋虎 韓國外國語大學敎 大學院 2017 국내박사

Tort Liability of a Professional Assessment & Certification Body: a Science & Technology-Based Conformity Assessment One This thesis examines the tort liability of a professional assessment and certification body. In particular, it deals with the professional negligence of the science and technology-based conformity assessment body. In doing so, the thesis aims to unveil that this professional certifier may owe a high degree of duty of care to third party individuals, who are not in privity with the certifier, under the English three stage of review process, the so-called Caparo test of the renowned English case in the year 1990. However, it might be worthwhile to note, at the same time, that, historically speaking, the Caparo Test has, since 1990, played a pivotal role in restraining an unbridled expansion of negligence liabilities in the U.K. for injuries incurred by the negligent activities of wrongdoers including professionals. This common sense-based theory logically presents not only foreseeability, but also proximity and public policy(fairness, just and reasonableness) before liability is imposed upon to any negligent behaviors under the law of torts. This paper seeks to emphasize the nature and criteria of the duty of care owed by the professional conformity assessment bodies, which lays foundation for those certification institutions to be reasonably found to be liable or not to be liable pursuant to the intelligible and restrictive review theory called the ‘Caparo Test’ for which this thesis demonstrate its general applicability regarding the issue of negligence and duty of care. The value which may be put on this study would be at the in-depth analysis with regard to the elements of the Caparo Test applicable to negligence cases of the certifiers, coping with the current unceasing demand for safety under the contemporary science & technology-driven society. First of all, this thesis proves that the conformity assessment bodies are not that remote to the third parties in that there could be, to some degree, normative expectations and potential reliance from the society on the certifiers who are legally sufficient to qualify as professionals under the precedent decisions of the courts in Korea and foreign countries. Moreover, this paper offers that the certification bodies may be liable to individual citizens and consumers, who are injured by the products or services inspected and/or certified by the certifiers, depending on the assessment bodies’ inter-relationships with the third party normal persons regardless of contractual setting. The approaches taken in this paper highlight differences between the Korea's negligence theory under the article 750 of the Civil Act and the English negligence doctrine developed under the common law court system of a judge-made law. The distinguishing factors to differentiate each other seem to be at the way of approach to find how a duty of care may be owed given the factual circumstances and the requirements of the law of torts in each country. Korea appears to be more inclined to have the element of ‘Unlawfulness’ in the Article 750 of the Civil Code play more interpretive roles in finding negligence(‘dualist approach’). However, the English review test focuses on the proximate relationship between the parties as well as public policy aspects of fairness in the U.K.(‘monolist methodology’). Rather than suggesting one outweighs the other, this thesis carefully examines the possibility of generality and applicability of the English restrictive three stage methodology in professional negligence case. Notably, the Restatement (Second) of Torts that feeds the U.S. courts also provides intelligible principles involving the expert certifier's liability toward any remote third parties in Section 324A, 311 and 552, which are examined, in this thesis, to be understood in the same ambit of the restrictive English test. Moreover, the Principles of European Tort Law(PETL) unequivocally proscribes under Article 4:102(1) that the required standard of care should consider the expertise, the foreseeability, and the relationship of proximity or special reliance, hinting that the PETL embraces the Caparo principle. Consequently, this paper argues whether the conformity assessment body qualifies as, in a normative sense, a professional at the last citadel to check out safety in a product and what legal scrutiny may be available to find such a body liable for its negligent inspection or certification causing physical damages to the third party users not in agreement with the certifying body. The recent changes in societies, technologies, and jurisprudence cannot be taken for granted where the very function of negligence is required to legitimately interact with those changes. This paper is arranged into three sections. The first section involves societal reliance on the conformity assesment bodies and their function as professionals where this thesis examines the concept and function of a science and technology based conformity assessment body, suggesting that this assessment body falls within the definition of a professional who must act with a high degree of duty of care in most of countries like England, the U.S. Japan, France, Germany and Korea. In the second section, this paper touches the historic developments of a theory of duty of care in the western legal environment before a general duty of care is established and is found to be controlled by the well-balanced principle to scrutinize negligence. Most of all, the three elements underlying the 1990's Caparo Test show the potential for the English test to be a general tool to apply to any negligent incidents even in a code-based civil law system. Being widely recognized and cited by subsequent cases in the U.K. till now, the relationship-focused restrictive test appears to be useful to logically justify the existence and non-existence of certain duty of care between a wrongdoer and an injured. The generality of the English restraint theory is strong enough to be inclusive of the voluntary assumption of responsibility theory under the Hedley case and of the relevant clauses of the Restatement (Second) of Torts which are designed to protect the third parties who are reliant upon negligent misstatements by professional services. The last part deals with the application of the three stage test to negligence of the certification body under Korea's Civil Act. When the interactions between the certifier and the injured are closely looked into, this English approach appears to be quite novel, innovative, and so rarely observed in the Korean civil cases. However, the proximity approach presents the potential to be able to make up for the way how the Korean tort law judges negligent wrongdoings. Moreover, Korea’s Unlawfulness test may well be supplemented or partly reasonably replaced by this Caparo test’s proximity and public policy doctrine including fairness, just and reasonableness to finally reach a balanced conclusion as to liability. In the meantime, we can not dismiss the public function that the technical assessment body contributes to the considerable public good by means of developing, establishing, interpreting and applying the de facto standards incorporating and absorbing a variety of conflicting interests among the private and public sectors. Thus, without reconsidering the defense factors of the science-technology conformity assessment body, the courts would not be able to reach fair decisions as to negligence. The nature of certification inherently involves the uniqueness such as no warranty of product safety, methodology of sampling tests, professional judgement, autonomous rule-making & applying activities, and no physical control of the products under inspection, etc. In a nutshell, the duty of care as the core of negligence is expected to more effectively contribute, with the English three-stage restrictive test, to normatively engineering the safer society, protecting reliant individuals in this risk-riddled technical society from the risky products rolled out in the market which are so technically complicated that those convergence outputs get to the extent of threatening unspecified countless consumers with their potentially imperfect design, assembling and manufacturing process. Now is the time to take into account the social roles of, and the legal implications from, the science & technology based conformity assessment body.