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.

자동차 손해보험 배상의학에서 한시장해평가의 문제점 : 척추체 중심으로 살펴본 한시장해

이규복 고려대학교 법무대학원 2016 국내석사

우리나라 자동차보험 대인사고로 배상의학에서 보험금을 지급하는 사례를 살펴보면 현재 맥브라이드 식 후유장해 평가표에 의해서 후유장해율에 따라 상실수익액을 지급하고 있다. 맥브라이드 식 노동능력 평가표는 1936년도에 미국의 오클라호마 대학교의 의과대학 교수였던 맥브라이드 교수가 정한 노동능력 상실 평가표이고, 현재 국내 교통사고 환자나 손해배상 기준에 적합하지 않는 것이지만, 그래도 이 평가표를 현재 그대로 사용하고 각 손해보험사와 법원에서도 이를 적용해서 사용하고 있다. 이 평가표는 신체 부위별로 16개의 항목으로 나누고 전신 기능에 대하여 영구장해로 나누어 직종별 등급을 정해서 1-9까지의 숫자로 직종별로 이 등급표를 적용하여 백분율로 정한다. 국내 손해보험사들은 맥브라이드 식 평가표에 따라 16개 항목별로 나누어 영구장해를 기준으로 손해보상보험금을 교통사고 피해자에게 지급을 해야 함에도, 1995년부터 보험사들은 척추체 장해보상 평가에서 규정되어 있지 않은 한시장해론 개념을 도입하여 이를 적극 활용하고 현재에 이르기까지 한시장해 평가로 척추체 후유장해보험금을 지급하기에 이르렀다. 이와 같은 한시장해 평가방법은 척추체 부상으로 인한 후유장해 평가를 추간판 탈출증으로 수술한 환자에게까지 한시장해로 인정하고, 하물며 척추체 압박골절 피해자까지 척추체 한시장해를 인정하는 것은 잘못된 손해배상 원리이다. 이러한 척추체 한시장해 평가는 우리 사회가 억울하게 교통사고를 당한 피해자들인 국민들에게 과오를 저지르는 것이다. 그래서 맥브라이드 식 후유장해 평가에는 한시장해를 적용해서는 안 되고 영구장해를 적용해야 하며, 만약 척추체 염좌의 경우 한시장해를 인정한다면 일본과 같이 정확한 급수에 의한 평가기준을 정립해야 한다. 국가배상법이나 국민연금법, 산업재해보험보상법 등에는 어디에도 척추체 한시장해 평가를 하는 곳은 없다. 우리나라의 후유장해 평가방법을 살펴보고 현재 부당하게 척추체 한시장해 평가로 후유장해 평가를 적용하고 있는 손해보험 배상의학에서 한시장해 평가의 문제점을 연구하고 바로잡아야 할 필요가 있다고 생각한다.