인공지능과 제조물책임 - 유럽 제조물책임 지침 개정에 즈음하여 -

Artificial intelligence based on machine learning and deep learning differs from traditional tangible products in that it possesses dynamic characteristics such as opacity, unpredictability, autonomy, and self-learning capabilities. Where damage arises from defects in AI systems, existing legal frameworks encounter significant difficulties in regulating such harm, often resulting in a so-called “liability gap,” in which it is challenging to identify the party responsible. Nevertheless, there is little doubt that damage caused by defects in digital products such as AI should be subject to the same level of consumer protection as that afforded to traditional products. In order to address these challenges and to eliminate legal uncertainty surrounding digital products such as AI software, the European Union has revised the relevant Directive. Compared to the Product Liability Directive adopted in 1985, the revised European Product Liability Directive may be evaluated positively in that it seeks to reduce legal uncertainty and enhance predictability in the provision of remedies for damage caused by such products. For example, the revised Directive includes software—previously a highly controversial issue—within the definition of a product, extends the temporal framework for assessing defects in digital products such as AI, and introduces mechanisms for the disclosure of evidence and presumptions of defect in order to alleviate the evidentiary difficulties faced by injured parties. These developments offer significant insights for potential amendments to the Korean Product Liability Act. However, as discussed above, even the revised European Directive does not fully reflect the dynamic characteristics of AI and has been subject to considerable criticism in several respects. As noted earlier, the Directive continues to allow development risk defence and still requires injured parties to overcome substantial evidentiary burdens in establishing defectiveness, thereby retaining elements of fault-based liability. Moreover, significant ambiguity and uncertainty remain with regard to the rules on evidence disclosure and presumptions of defect. Accordingly, the practical effectiveness of the revised Directive remains to be seen.