독일의 제조물책임법에 관한 고찰

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서울대학교 국제학연구소
국제지역연구, Vol.10 No.3, pp. 81-106
In Korea, legal theories on product liability have developed slowly through a colloquy between the courts and academic commentators. It was only on 12 January 2000 that the Product Liability Act was enacted, scheduled to be enforced from 1st July 2002. Meanwhile, in Germany, product liability law was established on the basis of the interpretation and construction of the Civil Code, before the German Product Liability Act of 15 December 1989 has been enforced since 1990 by the implementation of the EEC Directive on Liability for Defective Products. Considering that Korean legal system essentially modeled after the continental legal system, that it was considerably influenced by the German law in the area of civil law, and further that the structure and the contents of the Korean Product Liability Act are very much similar to that of Germany, exploring the German law on product liability and the subsequent development of the theories and judicial precedents will offer precious insights into the future construction and implementation of the product liability law in Korea.

This paper looks at the German Product Liability Act and examines the legal situation following the enactment of the Act, with some comparative study with the Korean Product Liability Act. The German Product Liability Act adopted the strict liability for faulty products in accordance with the ECC Directive. However, under the German law, injured parties would rather be pursuing product liability claims under the tort provision of the Civil Code. For the past ten years since the coming into force of the Product Liability Act, there is only one decision rendered by the Federal Court of Justice on this Act. This suggests that the traditional approach to product liability via tort law serves as the more important basis for claims and at the same time reveals the inefficiency of the German Product Liability Act in actual court practices owing to the many limitations inherent in the Statute.

In terms of the basic structure, Korean Product Liability Act is similar to that of the German Product Act, primarily in the sense that the Act does not apply to the damage to the product itself and that the defence of product development risk by a producer is allowed. However, unlike the German Product Liability Act, the Korean Product Liability Act is applicable to the compensation for immaterial loss as well; the scope of the injured party is not necessarily confined to consumers; and it does not prescribe the limit on the producer"s total liability for damages. With the differences in mind, it can be said that the Korean Product Liability Act is enacted more or less in a better shape than its German counterpart.
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Graduate School of International Studies (국제대학원)Dept. of International Studies (국제학과)국제지역연구 국제지역연구 vol.10 (2001)
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