한국형 자동차레몬법의 입법(立法)과 이행과제

The Automobile Lemon Law of Korea, as an amendment to ‘the Automobile Management Act’ [here in after “the Korean Lemon Law”], was enacted in October 2017. The Korean Lemon Law provides that new vehicle owner has a right to demand the manufacturer refund or replacement of his/her defective vehicles if the requirements of the right would be met. Also, the law establishes the Korean Lemon Law arbitration system dealing with disputes over the right to demand a refund or replacement. Due to the Korean Lemon Law legislation, protection of the owner’s rights will be strengthened whereas the responsibility of manufacturers will somewhat be increased. Until now, disputes concerning a refund or replacement of defective vehicles would be resolved through the non-binding Consumer Dispute Settlement Conciliation according to a Notification, namely the Consumer Dispute Settlement Standards having only advisory effect. Only very small number of the disputing parties of the conciliation process agree with the proposal of conciliation. So, the Korean Lemon Law provides the requirements of refund or replacement as follows: To be replaced or refunded, the car, namely lemon car, is a newly purchased noncommercial car or a commercial car owned by an individual business who has only the one car. The sale and purchase agreement for the vehicle includes express warranty including refund or replacement provisions. The defect causes safety risk or significantly impairs the use or economic value of the vehicle. As the requirement concerning manufacturer’s repair attempts, within the period of protection (defined as the earlier of 12 months or 10,000 Km mileage after the vehicle’s delivery to the owner), the vehicle has either a material defect which remains unfixed after two or more attempts of repair or the vehicle is out of service by the reason of repair for a cumulative total of at least thirty days. (The number of repair attempts of a non-material defect is three or more within the period of protection.) Also, after one time attempt to repair a material defect (or two time attempts to repair a non-material defect) the owner must give notice to the manufacturer for final chance to repair the defect. The owner needs to ask a refund or replacement within two year statute of limitation from the date of delivery. A defect discovered within six months after the date of vehicle delivery will be presumed to have existed from the delivery date, which is the shift of burden of proof from the owner to the manufacturer. Disputes concerning a refund or replacement of defective vehicles would be resolved through the Korean Lemon Law arbitration procedure if there is an arbitral agreement between the manufacturer and the owner. The arbitral agreement would be established if both parties accept the Rules of Refund or Replacement Arbitration enacted by the Vehicle Safety and Defects Review Committee under the Ministry of Land, Infrastructure and Transport in writing. The arbitral award has binding effect like that of final judgement of court. The law will be effective on January 1, 2019. Therefore, the Korean government prepares the administrative regulation under the Korean Lemon Law, namely statute. The Rules of Refund or Replacement Arbitration should be drafted very soon even though the Vehicle Safety and Defects Review Committee has the power to legislate the rules. In order to acquire consistency and reliance of the arbitral awards, detail and distinctive rules are desirable. It is necessary to consider the fact that Koreans are generally not accustomed to the arbitration and the procedure when the Rules of Refund or Replacement Arbitration is being drafted.