제조물책임법과 개발위험의 항변

ore than 5 years have passed since our Product Liability Act was enforced. The enactment of Product Liability Act means that the liability system based on the negligence shift to the liability system based on the defect. So many consumer supposed that there was the drastic change in the area of PL. But in reality there is little change. It's because design defects and warning defects are primarily based on the negligence of producer. And even in the area of manufacturing defects there is little change. Before the enforcement of new act the producer was apt to be liable to the defects he made regardless of his fault or negligence. And Presumption of negligence was applied in many cases. One of the consumer's disappointments is the adoption of the 'Development Risk' defense(the state-of-the-art defense). It's prescribed in the § 4①ⅱ of our act. That is as follows: Article 4 (Exemptions) ① In cases where Article 3 applies, the manufacturer, etc. shall not be liable as a result of Article 3 if he proves; (1. -------------------------------------------------------) 2. that the state of scientific or technical knowledge at the time when the manufacturer, etc. delivered the product was not such as to enable the existence of the defect in the product to be discovered; But I think that the adoption of the 'Development Risk' defense is not adequate even though many industrial nations accept the state-of-the-art defense. First of all It's nearly impossible to find out 'the state of scientific or technical knowledge at the time when the manufacturer, etc. delivered the product'. Because Scientific knowability refers not to what in fact was known at the time, but to what could have been known at the time. And the adoption of the 'Development Risk' defense means that the human is the means of the development of science or technology. So 'Development Risk' defense in our act must be deleted. But for the compromise of innovation and safety, this paper proposed, the compensation may be reduced when the producer observed carefully, warned the hazards and recalled them after delivering the products. This paper ends with the phrases which were appeared in the 'Beshada v. Johns-Manville Products Corp' judgement : The concept of knowability is complicated further by the fact---that the level of investment in safety research by manufacturers is one determinant of the state-of-the-art at any given time. By imposing on manufacturers the costs of failure to discover hazards, we create an incentive for them to invest more actively in safety research.