계약외채무의 준거법에 관한 유럽연합 규정(로마Ⅱ)상 제조물책임의 준거법

The Rome Ⅱ Regulation (Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations) is the result of a long-standing European debate on the applicable law of international product liability, and it is also a norm that applies to the international trade of goods by Korean companies. This article examines in detail the principles for determining the governing law of product liability under the Rome Ⅱ Regulation and considers whether it can be used as a guide for interpretation or legislation in Korean law. According to the Rome Ⅱ Regulation, the law of the domicile of the victim shall be applied first to the liability for damages arising from product liability, followed by the law of the place of acquisition of the product, and then the law of the place of damage (Article 5(1)1). These three connecting points require the product to be "sold" in the countries listed above. And if the manufacturer (or the person alleged to be responsible) could not reasonably have foreseen that the product, or a product of the same kind, would be sold in the countries listed, the law of the place of habitual residence of the manufacturer will apply (Article 5(1)2). However, the Regulation provides that if it is clear from all the circumstances that the damage caused by the product is more closely connected to another country than to the aforementioned country, the law of that country shall apply (Article 5(2)). It is clear that the Rome Ⅱ Regulation's approach of limiting the determination of governing law to objective criteria that take into account the foreseeability of the manufacturer is a good example of how to properly balance the interests of the manufacturer and the victim. However, the Rome Ⅱ Regulation has been criticized for its lack of flexibility by limiting the objective determination of governing law to cases where there is 'foreseeability of the sale'.