製造物責任法의 問題點과 課題

다국어 초록 (Multilingual Abstract)

1. Necessity of Products Liability Law in Korea
Even though it has been possible for every country to protect consumers form harm or damages caused by product defects without products liability law (PLL), in recent decades many countries - like the U.S, every European country, and Japan - have legislated their own types of PLL. that many lawmakers found that PLL helps protect consumers.
In the U.S, there is no federal products liability law, but products liability has become a part of the tort law of every state through numerous litigations. Section 402A, adopted in 1964 by the American law Institute (ALI) as a part of the Restatement Second of Torts and entitled “Special Liability of Seller of Product for Physical Harm to User or Consumer”, has been accepted as a principle rule for judicial decision.
In Europe, the “Council Directive of 25 July 1985 on the approximation of laws, regulations and administrative provisions of the Member States concerning liability for defective products (85/374/EEC)” was adopted in order to make the competitive conditions in the EC common market uniform, to promote the movement of goods in the market, and to protect consumers in the member states. It took some time, but each EC country has established according to the Directive its own statutes, regulations or administrative procedures for product liability. The last Euro country to legislate PLL was France, which on 19 May 1998 made it a part of the civil law.
Only Japan among leading advancing industrial countries had not made relevant law, it finally have made law of products liability on June, 1994 and our Korea becomes to lie under effect of above countries inevitably.
This also affected EFTA-countries aimed at establishing EEA throu호 unification with EC, finally causing all EFTA-joining Countries to make law of Product liability. In addition, Australia, Brazil, 껴냠, China ect also made law of products liability to adopt strict liability.
Under such situations our Korea cannot sit idle watching, Administration Innovation Committee under the Prime Minister office have examined to make law of products liability as strategic issue for consumer protection from end of 1993 and reached final conclusion to make of products liability recently. it finally have made law of products liability on 12 January 2000.
2. Composition of Essay
At such time, this Essay is prepared to help relating discussion.
In Chapter 1, I'll examine whole of present situation under which products liability saw is discussed, then establishing study orientation of this essay.
In Chapter 2, I'll examine conception and history of law theory for products liability, position of our judicial precedents, law composition method on present law and its problem, appearance and theoretical, political base of new law theory to overcome its limit.
In chapter 3, I'll explain hole contents products liability law.
In Chapter 4, I'll explain the other nation's products liability system.
In Chapter 5, I'll explain the issue and subject of products liability law.
Finally, in Chapter 6, I'll tentative conclusion with regard to desirable orientation and contents in made products liability law in our Korea.
3. Development of Product Liability Theories
Until the early 1800s, one could not be compensated for harm caused by product defect if there was no privity of contract between the plaintiff and the defendant(see Winterbottom v. Wright (Court of Exchequer, 1842)). However, in the late 1800s, the courts were recognizing privity-free product liabilities. Courts in many states began imposing negligence and strict warranty liabilities on commercial sellers defective goods, though in the beginning it was under very limited conditions (Thomas v. Winchester ( 6 N.Y. 397, 1852), Macpherson v. Buick Motor Co. (217 N.Y.382,111N.E. 1050,1916)).
In the early 1960s, American courts began to recognize that a commercial seller of any product having a manufacturing defect should be liable in tort for harm caused by defect, regardless of plaintiff's ability to maintain a traditional negligence or warranty action. A plaintiff was not required to be in direct privity with defendant seller to bring an action. Strict liability in tort for defectively manufactured products merges the concept of implied warranty, in which negligence is not required, with the tort concept of negligence is not required, with the tort concept of negligence, in which contractual privity is not required.
The rationale for imposing strict liability in tort on commercial sellers of defective products is as follows:
(1) The seller has an abundance of high technical knowledge and information about its products and is in the position who could control or eliminate danger in the use of such products.
(2) The seller earns profits by selling products.
(3) The seller can diminish the burden of cost caused by defective products by raining the price of its products or by getting insured against the costs of defective products.
(4) The potential for imposition of liability could give the sellerincentive to make safer goods.
Form the 1970s to the mid-1980s, in order to strengthen protection of consumers, US courts have applied many other principles. It could be said the history of litigation for product liability is the history of expansion of concept of defects of products. Until the late 1960s and the early 1970s, strict liability has been imposed in connection with manufacturing defects; however, as time went on, strict liability began to be imposed for even design defects and inadequate instructions or warnings.
4. Conclusion
Tentative conclusion with regard to major points and subject in made relevant law in Korea is summed up as followings:
(1). Law form follows comprehensive law according to made of special law.
(2). Characteristics of law follows law to relieve the injured on the base of understanding it as special case of illegal action (even though so understand, likewisely main object is to protect consumer).
(3). Range of manufacturing products includes movable estate and rel estate which is marketable products. Non-processed agricultural, forestry, fishery products is desirable to contained in object. Fundamentally intangible energy such as service and electricity, and software shall not be contained in manufacturing products shall be object for products liability law.
(4).Principal subject of liability shall be manufacturer(including similar manufacturer), importer, supplier shall bear subsidiary liability in case which manufacturer is not noticeable.
(5). Limit of damage compensation is not restricted as long as we regard this law as the injured relief law of special law of illegal action.
Only damage of manufacturing products itself shall be excluded from compensation. Additional penalty (damage compensation as penalty) shall not be admitted.
(6). Plea with regard to development risk shall not be admittable.
(7). Legal presumptive provision for the existence of defeat regarding evidence liability and the cause-effect relation between defect and damage shall not be admittable. only presumptive provision for existence time of defect shall be made considering on evidence burden of the injured. In this case, a fixed exemption cause of manufacturer is admitted.
(8). Liability limit amount and indemnity amount shall not needed separately and interpretation of liability restrict special contract shall follow the Civil Law.

목차 (Table of Contents)

• 第1章 序論 = 1
• 第1節 序 = 1
• 1. 製造物責任 問題의 擡頭 = 1
• 2. 製造物責任法 導入의 社會的 背景 = 1
• (1). 現行法上 被害 救濟의 어려움 = 1
• (2). 開放化, 國際化 時代의 要請 = 2
• 第2節 우리 나라의 立法動向및 推進經緯 = 2
• 1. 우리 나라의 立法動向 = 2
• 2. 製造物責任法의 推進經緯 = 3
• 第3節 硏究의 目的, 範圍, 構成 = 4
• 第2章 製造物責任法制定前의 被害者의 救濟方案 = 6
• 第1節 序 = 6
• 第2節 製造物責任의 槪念 = 6
• 第3節 製造物責任의 生成과 發展 = 7
• 1. 契約當事者關係의 要件 = 8
• 2. 過失責任, 保證責任 = 9
• 3. 不法行爲法上의 嚴格責任 = 9
• 第4節 우리 나라의 判例上의 製造物責任 = 10
• 1. 닭사료의 缺陷事件 = 11
• 2. 질소통사건 = 12
• 3. 불량 장난감주사기사건 = 13
• 4. 선박건조계약사건 = 13
• 第5節 現行法上製造物責任의 解決方法과 그 限界 = 15
• 1. 契約責任 = 15
• (1) 契約責任에 의한 救濟 = 15
• (2) 瑕疵擔保責任 = 16
• (3) 債務不履行責任 = 17
• 2. 不法行爲責任 = 18
• 第3章 製造物責任法의 內容과 特徵 = 21
• 第1節 序 = 21
• 第2節 旣存의 消費者保護制度와의 差異點 = 21
• 1. Aft er ser vice(A/ S) = 21
• 2. Reca ll 制度 = 22
• 第3節 各條文의 個別的考察 = 23
• 1. 目的(第1條) = 23
• 2. 製造物의 槪念(第2 條1 號) = 24
• 3. 缺陷(第2條2 號) = 27
• (1) 序- 責任要件轉換의 意味 = 27
• (2) 缺陷의 意義 = 28
• (3) 缺陷의 類型 = 28
• (4) 缺陷의 判斷基準 = 29
• (5) 缺陷判斷에 관한 諸問題 = 31
• 1) 缺陷判斷의 時點 = 31
• 2) 缺陷判斷의 主體 = 31
• 3) 誤用과의 關係 = 31
• 4) 天災등의 不可抗力 = 32
• 5) 行政上의 安全規制基準과의 關係 = 32
• 4. 製造業者(第2條3 號) = 32
• (1) 序- 責任主體 = 32
• (2) 完成品의 製造者 = 33
• (3) 製造物을 輸入한 者 = 33
• (4) 製造物의 姓名商號기타 식별 가능한 記號등을 使用하여 自身을 가 목의 자로 표시한 者또는 가 목의 者로 誤認시킬 수 있는 표시를 한 者 = 34
• 5. 損害賠償責任(第3條) = 35
• 6. 免責事由(第4條) = 36
• (1) 序 = 36
• (2) 免責事由(第4條1號, 3號, 4號) = 37
• (3) 開發危險의 抗辯(2號) = 37
• 1) 定義와 理論의 背景 = 37
• 2) 開發危險 抗辯의 採否에 관한 問題 = 39
• 3) 科學. 技術지식의 수준과 社會的 救濟 制度의 確立 = 41
• 7. 連帶責任(第5條) = 42
• 8. 免責特約의 制限(第6條) = 44
• 9. 消滅時效등(第7 條) = 45
• 10. 民法의 適用(第8 條) = 46
• 11. 附則46
• 第4節 製造物責任法의 特徵 = 47
• 1. 序47
• 2. 無過失責任制度의 導入 = 47
• 3. 適用範圍 = 47
• 4. 缺陷 = 48
• 5. 責任主體 = 48
• 6. 連帶責任 = 48
• 7. 消滅時效등 = 49
• 8. 기타 = 49
• 第5節 製造物責任法의 미흡한 점 = 49
• 第6節 製造物責任法施行에 따른 影響 = 51
• 1. 社會的經濟的影響 = 51
• (1) 訴訟의 增加 = 51
• (2) 製品價格의 上昇 = 51
• (3) 新製品開發意慾低下 = 52
• (4) 中小企業의 負擔加重 = 52
• (5) 人力資源의 浪費 = 52
• (6) 製造物責任保險의 未發達 = 52
• 2. 企業競爭力에 미치는 影響 = 53
• (1) 輸入品과 國內競爭 = 53
• (2) 海外市場에서의 國際競爭力 = 53
• 3. 中小企業에 미치는 影響 = 53
• (1) 資金의 不足 = 53
• (2) 脆弱한 事前交涉力 = 54
• (3) 製造原價의 負擔 = 54
• (4) 大企業과 協力關係惡化 = 54
• (5) 技術革新活動의 萎縮 = 54
• (6) 높은 保險負擔金 = 55
• (7) 情報能力不足 = 55
• (8) 事後管理能力의 不足 = 55
• 第4章 外國의 立法例 = 56
• 第1節 序 = 56
• 第2節 美國 = 57
• 第3節 EU = 59
• 第4節 日本 = 62
• 第5章 製造物責任法의 問題點과 課題 = 66
• 第1節 序 = 66
• 第2節 保護主體의 範圍 = 66
• 第3節 製造物의 範圍 = 68
• 1. 序 = 68
• 2. 未加工農水産物 = 68
• 3. 不動産 = 69
• 4. 電氣등 無形에너지 = 70
• 5. 情報(소프트웨어) = 70
• 6. 部品原材料 = 71
• 7. 中古品 = 71
• 8. 廢棄物 = 72
• 第4節 缺陷 = 72
• 第5節 責任主體 = 72
• 1. 序 = 72
• 2. 表示製造者와 輸入業者 = 73
• (1) 表示製造業者 = 73
• (2) 輸入業者 = 73
• (3) 販賣業者 = 74
• 3. 設置修理業者 = 74
• 第6節 損害의 範圍의 制限 = 75
• 1. 責任限度額 = 75
• 2. 責任制限特約 = 76
• 3. 免責額 = 76
• 4. 賦課金(懲罰的損害賠償) = 77
• 第7節 免責事由(開發危險의 抗辯) = 77
• 第8節 立證責任 = 78
• 1. 序 = 78
• 2. 推定規定의 導入 = 78
• (1) 缺陷의 存在의 推定 = 79
• (2) 因果關係의 推定 = 79
• (3) 缺陷의 存在時期의 推定 = 80
• 3. 證據收集手段, 情報請求權 = 81
• (1) 序 = 81
• (2) 證據收集手段 = 81
• (3) 情報請求權 = 82
• 4. 原因糾明機關, 裁判外紛爭處理制度의 整備 = 82
• (1) 原因糾明機關의 整備 = 83
• (2) 裁判外紛爭處理制度의 整備 = 83
• 5. 集團訴訟制度 = 84
• 第9節 過失相計 = 84
• 第10節 法施行當事者들의 앞으로의 對應方向 = 84
• 1. 政府의 對應方向 = 84
• 2. 消費者團體의 對應方向 = 85
• (1) 消費者認識 提高運動 = 85
• (2) 製品安全 分析機能의 强化 = 85
• (3) 消費者被害救濟制度의 强化 = 85
• 3. 企業의 對應方向 = 86
• (1)PL組織의 整備 = 86
• (2) 缺陷豫防措置의 實施 = 86
• (3) 文書作成및 保管·敎育 = 86
• (4) 事故製品의 確保및 早期警報시스템 = 86
• (5) 關聯業體와 責任關係明確化 = 87
• (6)PL保險의 加入 = 87
• 4. 保險實務界의 對應方向 = 87
• 第6章 結論 = 89
• 附錄 = 96
• 參考文獻 = 99
• ABSTRACT = 104