제조물책임법 활성화 방안에 관한 연구 - 현행법의 한계와 개선안 마련을 중심으로 -

About 19 years have passed since the enactment of the Product Liability Law of Korea in 2002. However, the law has been underutilized and there have been few court precedents that cite or invoke the Product Liability Law. In order to increase the applicability of the Product Liability Law, it is necessary to first solve the very problems that the legislators were hoping to solve with the enactment of the Law. First, in this hyperconnected society where humans and things are connected, software has become more important than ever. Given the current environment, it is undesirable to exclude software from the scope of product. Software should be expressly included in the definition of product and therefore a subject of the Product Liability Law. While the definition of product liability under the Korean Law is based on both the definitions from the EC Legislative Guidance and the Restatement of the Law (Third) of the U.S., the Korean definition confuses the characteristics of the ‘no negligence principle’ of the product liability laws and places heavy burden of proof on the claimants which is not reasonable. In the U.S. the concept of tangible defect was introduced in an attempt to ease the heavy burden on the companies where the introduction of strict liability, punitive damage and class action lawsuit all fueled the surge of the number of product liability lawsuits resulting in many companies for filing bankruptcy and not being able to obtain insurance policy. As such, it is not fair to introduce the same concept that was designed to ease the burden of the companies to Korea as is. Therefore, it appears more appropriate in protecting the consumers to adopt the EC Legislative Guidance model under which the product liability is determined based on the standards that are expected from the consumers. The new provision adopted under the amendment to the Product Liability Law reliving the presumption of defect still places heavy burden of proof on the part of the consumers. Therefore, it may be necessary to relieve the strict burden of proof (that under the actual control of manufacturer, casual relationship between defect and the loss in the ordinary course) principle of the current provision so that there should be presumption of defect for accidents occurring while the product was in use by the consumer in the ordinary course unless the manufacturer is able to rebut that presumption with a proof that the loss was incurred for causes other than the defect. On the other hand, the class action lawsuit legislation will be introduced contained special provision that minimizes the burden of proof on the part of the plaintiffs during the course of the case and the pre-trial procedure of analyzing evidence are expected to ease the burden of the consumers. If enacted, the class action law will help revitalize the Product Liability Law and positive impact on consumer protection. The special provisions reliving the burden of proof on the consumer and invoking the court order mandating submission of materials should also be added into the Product Liability Law to better protect individual consumers. Lastly, the punitive damage regime contained in the proposed amendment to the Commercial Act is more favorable to consumers than the provision in the Product Liability Law. Upon the passage of the amendment which will expend the applicability of the punitive damage provision under the Commercial Act, the discussion then will be on what to do with Section 2 of Article 3 of the Product Liability Law. This paper argues that Section 2 of Article 3 of the Product Liability Law should also be modified in line with the proposed amendment to the Commercial Act. This is because even though the Commercial Act will take precedent, the Product Liability Law contains provisions that concern with matters that are not dealt in the Commercial Act, and therefore, it would be necessary to have the Product Liability Law revised to serve its intended purpose for the good of the society.