정보화시대의 전문가책임에 대한 고찰 = Professional Liability in the Information Age

다국어 초록 (Multilingual Abstract)

These days the so-called “information age experts” have hard times in on-line/off-line world. It’s because those experts who produce various information, or collect, distribute such data in the Cyberspace are often to blame since common people get to know in-depth information and are sensitive to such errors as committed by such experts.
Then who is an information age expert? Conventionally, professionals refer to medical doctors, dentists, accountants, appraisers, credit rating agencies and so on. Recently such experts as power bloggers, popular twitterians, regular Internet bulletin commentators belong to a new generation specialist group. Even though they don’t have qualified licenses, no one doubts their influence over the Internet users because the effect of their conducts is swift as light-speed, direct as specialists, and widespread as nationwide or worldwide.
This paper examines the existing theories and case law on professional liability in Korea as well as the in United States, and considers the appropriate and desirable level of professional conducts. Its major target centers on the credit rating agencies, which have been harshly criticized and heavily regulated since the global financial crises triggered by the defaulted subprime mortgage loans and structured products. And the quasi-professional liability of the above-mentioned bloggers, twitterians and on-line reviewers is examined as well.
As for the new generation of professionals, their specialty and reputation have been accumulated by means of widespread and positive responses as denoted by page views and affirmative replies even though there is no certified public license. Such kind of license may be replaceable by the number of page views or on-line visitors. The example is the famous “Minerva case” in the year-end of 2008. In the midst of global financial crises, the influence of Minerva’s critical comments were so huge and unpredictable that the public prosecutors accused him of immeasurable damage to public interest, i.e., the stability of nation’s economy via the electrical communication facilities, or the Internet. Later he was acquitted in that his comments were a mere kind of speech to be protected by the Constitution, and the provision of the Framework Act on Electric Communications was declared unconstitutional by the Constitutional Court in December 2010.
Then what is the responsibility to be borne by these new generation experts? It might be, among others, technical measures for the prevention of further damage, take-down of the controversial content at issue, timely warning notices to users, etc. rather than tort liability for damages.
The U.S. case law illustrates how a professional can be free of above-mentioned professional liability. Also there are some leeway. A professional is generally responsible for his misconduct only when he turned out to have willful intent or gross negligence. His disclaimer is regarded as effective in most cases. The amount of damages is limited to the professional fee or reward received by him, or otherwise compensated by the professional liability insurance(PLI).
So a professional including a credit rating agency may claim that he is not responsible for his misconduct, if any, by proving the followings:First, his conduct has been subject to general (due diligence) principle and reasonable work process.
Second, he has taken every effort to do his work in a proper manner, and had no actual malice against the public concern at issue.
Third, he tried to bespeak caution in detail to his clients when he gave them any disclaimer or warning notice in relation to his conduct of work. Fourth, he tried to persuade his clients not to wholly rely on the result of his work but to other trustworthy sources.
After the subprime mortgage debacle, a number of countries including Korea took regulatory measures against credit rating agencies: a new set of code of conduct, internal control procedures, reinforced dut...

참고문헌 (Reference)

1 박훤일, "컨설팅계약을 둘러싼 법률문제" 국제거래법학회 15 (15): 249-273, 2006

2 김영규, "전문가책임 법리와 의사의 책임" 단국대학교 법학연구소 20 : 1995

3 박훤일, "신용평가회사의 내부통제 규제현황 및 향후 입법정책과제" 국회입법조사처 정책연구보고서 2010

4 한국기업평가(주), "신용평가의 이해와 활용" 새로운 제안社 2009

5 박훤일, "신용평가에 따른 손해배상청구의 법적 문제" 한국경영법률학회 14 (14): 129-152, 2004

6 김필규, "신용평가 관련 규제체계 개선의 내용과 시사점" 서울대금융법센터 (45) : 2011

7 박훤일, "서브프라임 위기 이후 신용평가회사를 둘러싼 논란과 시사점" 13 (13): 2009

8 박준, "서브프라임 대출관련 금융위기의 원인과 금융법의 새로운 방향 모색" 국제거래법학회 17 (17): 3-57, 2008

9 함석천, "새로운 매체의 발전과 법의 대응 - 미국 판례를 중심으로 -" 법조협회 54 (54): 82-123, 2005

10 박훤일, "글로벌 금융위기로 대두된 신용평가회사 이해상충 문제의 해결방안" 한국증권법학회 12 (12): 111-143, 2011

11 소재선, "공인회계사의 민사책임" (22) : 2002

12 박형남, "감정평가 過誤에 대한 법적 책임 - 전문가책임의 관점에서" 민사실무연구회 2000

13 Davis Polk, "Summary of the Dodd-Frank Wall Street Reform"

14 International Financial Law Review, "SEC stops ‘race to the bottom’ on ratings"

15 European Commission, "Public Consultation on Credit Rating Agencies"

16 Claire A. Hill, "Limits of Dodd-Frank’s Rating Agency Reform, 31" 13 : 2012

17 Thomas M.J. Möllers, "Investor Protection in the System of Capital Markets Law: Legal Foundations and Outlook" 57 :