제조물책임의 주요 쟁점 -최근의 논의를 중심으로- = Special Issues : The Main Issues of the Product Liability

다국어 초록 (Multilingual Abstract)

The Korean Product Liability Act was promulgated on January 1. 2000and enacted on July 1. 2002. Since then, the Korean Supreme Court has delivered some important decisions. This paper overviews the recent debates on the product liability and analyses the relevant decisions. The Draft of the Korean Product Liability Act was designed after the model of the European Directive of the Product Liability. But the enacted Act adopted the risk - utility test of the U.S. third Restatement of the Products Liability in defining the design defect and warning defect instead of the consumer expectation test adopted by the European Directive. So there is a controversy whether the product liability according to the Act is strict or based on negligence. The most important issue of the product liability law is the proper understanding of the concept of the defect. As mentioned previously, the Korean Product Liability Act adopted the risk - utility test in defining the design defect and warning defect. According to it, a product has a design defect if the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design. And a product has a warning defect if the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings. From the economic perspective, this risk - utility test can be a way to enhance efficiency. The Korean courts were reluctant in acknowledging the design defect in the sudden acceleration cases and in the frozen pitot tube helicopter case. But it is doubtful whether the courts have applied the risk - utility test in these cases properly. In the highly publicized tobacco product liability case, the Seoul District Court denied the product liability of the tobacco manufacturing company for causing the lung cancer in 2007. According to the court, the casual relation between smoking and the lung cancer was not proved. In contrast, Seoul High Court, the appellate court, found that the epidemiological causation between smoking and the lung cancer was proved. But the Seoul High Court denied the product liability as well on the reason that there was no warning defect. The law of the product liability in Korea is still evolving. And more research in this field is needed.