자율주행차 사고와 제조물책임 : ADS Entity 등의 제조업자로서의 책임

In this article, firstly, I investigated whether a victim in an AV (automated vehicle) accident has incentive to pursue manufacturer’s product liability, Since an ADS or an AV is a product, it is clear a manufacturer of such a product shall be subject to the product liability regime, However, it is not clear whether a victim in such an AV accident will pursue this product liability of the manufacturer because the injured has another option under the special regime that is the operator liability. While the injured is required to prove a defect in an AV or ADS in manufacturer’s product liability regime, he is not subject to such a burden of proof in pursuing the operator liability because an operator is placed under strict liability under the special regime. However, unlike the victim, the operator’s insurance company may have a strong incentive to pursue manufacturers’ product liability when the cause of the accident is a defect in an AV or ADS. The company in shoes of the victim after compensating the victim for the operator’s strict liability is certain to pursue the manufacturers’ product liability. Therefore, the product liability will play an important role at this stage. This article also examined the general framework of product liability regime, and the meaning of “a manufacturer”, ie a person who carries out manufacturing, processing, or importing a product as a business. It is argued here that an ADS Entity who assumes driver liability instead of a robot-driver ADS may also be subject to the product liability regime when the ADS Entity has manufactured, processed or imported the ADS or AV. Finally, in this article, many individual issues arising in respect of claiming and proving defects in an AV or ADS have been dealt with. In particular, it is argued that although there is a provision for presumption of defects in the special regime, the presumption only applies when a manufacturing defect is concerned. In case of proving a design defect or a warning defect, the presumption does not apply, and thus the injured plaintiff is placed under burden to prove a reasonable alternative design or reasonable alternative warnings. It is argued since automated driving technology is a brand-new and emerging technology, it is nearly impossible for a victim plaintiff to understand such a technology completely and to prove alternative design or explanations, and thus the burden of the plaintiff should be lessened.