개발위험의 항변과 형법적 제조물책임 -가습기 살균제 등 대량생산되어 사용되는 일상생활용품의 사례를 중심으로-

A manufacturer can be held criminally responsible for injuries resulting from defects that were scientifically undiscoverable at the time the product was manufactured, because he in no way could know whether the product would be dangerous and therefore he did not mean to commit a crime. But post sales duties can still be imposed on manufacturers such as duties to observe whether the product has dangerous defects and, if found, to take proper measures to protect consumers. To date, two different perspectives, namely Ingerenz and Verkehrspflicht, have been adopted to ground the criminal product liability. Ingerenz and Verkehrspflicht are theoretical tools that are developed and being used in the interpretation of the German civil and criminal law. But it would be better to derive the duty of a manufacturer to protect consumers and avoid a harmful result from the current Product Liability Act. According to the Product Liability Act, a manufacturer could not raise the state of the art defense if the manufacturer has discovered the defect in the product after supply but has failed to take appropriate measures that could have prevented injuries caused by the defect. Also, the Act imposes duties upon manufacturers to observe and take appropriate actions regardless of whether the defect was known to him at the time the product was manufactured. These duties of manufacturers should be acknowledged as special legal duties, the breach of which lead to the imposition of criminal sanction. But it does not necessarily mean that any breach of the duties triggers criminal liability. The scope and limit of the “criminal” post-sale duties should be determined on the basis of the fundamental principles of criminal justice system such as the protection of the legal interests (Rechtsgüterschutz) and the ultima ratio principle.