제조물책임법과 제조물책임 - 법경제학적 비교 고찰을 중심으로 -

"Product Liability Act" and "Product Liability" based on institutional comparative analysis

The adjudicative process is a comparatively better institution than other institutional processes for improving product safety. The shifted distribution and the evenhandedness of institutional actors are two main reasons for the comparative advantages of the adjudicative process associated with product safety. First, the shifted distribution can be defined as the situation in which a skewed distribution in one institutional process converts into a uniform high distribution in another institutional process. The shifted distribution occurs in the context of product safety when the skewed distribution in political process converts into the uniform high distribution in the adjudicative process. This shifted distribution can occur because the political performs differently from the adjudicative process on the same issues. The political process tends to resolve upcoming concerns, while the adjudicative process tends to correct previous matters. The retrospective focus on private damage action in the courts contrasts with the prospective focus on regulations concerning safety issues. Parties with potential interests tend to participate in the political process, while parties with actual interests tend to participate in the adjudicative process. Because of the prospective aspect of political outcomes and the retrospective aspect of adjudicative outcomes, in the context of product safety, a skewed distribution in the political process turns into a uniformly high distribution in the adjudicative process. As a general matter, all institutional processes in the uniform high distribution are most likely to be responsive while all institutional processes in the skewed distribution tend to be unilateral in behavior or nonresponsive. In other words, the adjudicative process under the uniform high distribution is likely to produce better institutional outcomes than that under skewed distribution, because of more balanced participation on both sides. In this sense, the adjudicative process under the uniform high distribution has advantages over the other institutional processes under the skewed distribution in performing the improvement of product safety. Second, judicial actors, who are relatively independent of the general population and special interest groups, make the refinement of adjudicative participation and its effect on institutional outcomes more likely than do other institutional actors. Since the judicial system and procedures make it likely that only participants with high per capita stakes are able to have adjudicative participation, such active participation and influence on both sides is unlikely to become distorted. The independence of judicial actors from adjudicative participants is likely to produce evenhanded outcomes by precluding the negative effects of more active participants in a uniformly high distribution. In this sense, the adjudicative process is likely to produce the evenhanded adjudicative outcomes related to product safety. On the other hand, the dependence of institutional actors within the political process makes likely the production of distorted institutional outcomes along with unbalanced participation between potential injurers and victims. The political participants under the skewed distribution are likely to produce a biased influence toward institutional actors. In particular, because of the dependence of political actors on the general population and interest groups, political actors are unlikely to overcome the influence of more active participants. The dependence of institutional actors and unbalanced participation are likely to justify the distorted outcomes against potential victims in the context of product safety. Even the contents of Product Liability Act in Korea suggest that it is likely to create illusory outcomes for the majority. Therefore, it is hard to expect improvement of product safety to occur through political process. Consequently, the adjudicative process with p